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As filed with the Securities and Exchange Commission on May 26, 2026.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Kardigan, Inc.
(Exact name of registrant as
specified in its charter)
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Delaware |
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2834 |
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93-2994203 |
(State or other jurisdiction of
incorporation or organization)
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(Primary Standard Industrial
Classification Code Number)
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(I.R.S. Employer
Identification Number)
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Kardigan, Inc.
506 Carnegie Center Drive, Suite 201
Princeton, NJ 08540
(415) 573-3220
(Address, including zip code, and telephone number, including area code, of registrant’s
principal executive offices)
Tassos Gianakakos
Chief Executive Officer
506 Carnegie Center Drive, Suite 201
Princeton, NJ 08540
(415) 573-3220
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
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Mitchell S. Bloom
Benjamin K. Marsh
Janet Hsueh
Goodwin Procter LLP
100 Northern Avenue
Boston, MA 02210
(617) 570-1000
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Peter N. Handrinos
Elisabeth M. Martin
Latham & Watkins
LLP
200 Clarendon Street
Boston, MA
02116
(617) 880-4500
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Approximate date of commencement of proposed sale to the public: As soon as practicable after this registration statement becomes effective.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, as
amended, check the following box: ☐
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering. ☐
Indicate by
check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large
accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer |
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Accelerated filer |
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Non-accelerated filer |
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Smaller reporting company |
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Emerging growth company |
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for
complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a
further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the Registration Statement shall become effective
on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
Table of Contents
The information in this preliminary prospectus is not complete and may be changed. We may not sell these securities until the registration
statement of which this prospectus forms a part filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any
state or other jurisdiction where the offer or sale is not permitted.
Subject to Completion, Dated May 26, 2026
PRELIMINARY PROSPECTUS
shares
Common stock
This is an initial
public offering of shares of common stock of Kardigan, Inc. We are offering shares of our common stock.
Prior to this offering,
there has been no public market for our common stock. It is currently estimated that the initial public offering price per share will be between $ and $ . We have applied to list our common stock on the
Nasdaq Global Market (“Nasdaq”) under the symbol “KARD.” We believe that upon the completion of this offering, we will meet the standards for listing on Nasdaq, and the completion of this offering is contingent upon such
listing.
We are an “emerging growth company” and a “smaller reporting company” as defined under the U.S. federal securities laws and, as
such, we have elected to comply with certain reduced public company reporting requirements in this prospectus.
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Per share |
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Total |
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Initial public offering price
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$ |
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$ |
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Underwriting discounts and commissions(1)
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$ |
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Proceeds, before expenses, to Kardigan, Inc.
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$ |
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See the section titled “ Underwriting ” for additional information regarding compensation payable to the underwriters. |
We have granted the underwriters an option for a period of 30 days to purchase up to an additional shares of common stock from us, at the
initial public offering price, less the underwriting discounts and commissions.
Investing in our common stock involves a high degree of risk. See the section
titled “ Risk Factors ” beginning on page 12 to read about factors you should carefully consider before deciding to invest in shares of our common stock.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the accuracy or
adequacy of this prospectus. Any representation to the contrary is a criminal offense.
At our request, the underwriters have reserved up to 5% of the shares
offered by this prospectus for sale, at the initial public offering price, to our directors, officers, certain employees and certain other persons associated with us. See the section “ Underwriting—Directed share program .”
The underwriters expect to deliver the shares against payment on or about , 2026.
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J.P. Morgan |
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Jefferies |
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Leerink Partners |
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TD Cowen |
Prospectus dated , 2026
Table of Contents
Table of contents
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Prospectus summary
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1 |
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The offering
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Summary consolidated financial data
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Risk factors
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Special note regarding forward-looking statements
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107 |
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Use of proceeds
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109 |
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Dividend policy
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111 |
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Capitalization
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112 |
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Dilution
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114 |
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Management’s discussion and analysis of financial condition and results of operations
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117 |
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Business
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141 |
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Management
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226 |
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Executive compensation
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236 |
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Director compensation
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250 |
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Certain relationships and related person transactions
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252 |
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Principal stockholders
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258 |
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Description of capital stock
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261 |
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Shares eligible for future sale
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268 |
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Material U.S. federal income tax consequences for non-U.S.
holders
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270 |
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Underwriting
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275 |
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Legal matters
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288 |
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Experts
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288 |
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Where you can find additional information
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288 |
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Index to consolidated financial statements
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F-1 |
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Through and including , 2026 (the 25th day after the date of this prospectus), all dealers effecting
transactions in our common stock, whether or not participating in this offering, may be required to deliver a prospectus. This delivery requirement is in addition to a dealer’s obligation to deliver a prospectus when acting as an underwriter
and with respect to an unsold allotment or subscription.
Neither we nor the underwriters have authorized anyone to provide you any information or make any
representations other than those contained in this prospectus or in any free writing prospectuses prepared by or on behalf of us or to which we have referred you. We and the underwriters take no responsibility for, and can provide no assurance as to
the reliability of, any other information that others may give you. We and the underwriters are not making an offer to sell these securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information
appearing in this prospectus or in any applicable free writing prospectus is current only as of its date, regardless of its time of delivery or any sale of shares of our common stock. Our business, financial condition, results of operations and
prospects may have changed since that date.
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For investors outside of the United States: we have not, and the underwriters have not, done anything that would
permit this offering or possession or distribution of this prospectus in any jurisdiction where action for that purpose is required, other than the United States. Persons outside of the United States who come into possession of this prospectus must
inform themselves about, and observe any restrictions relating to, the offering of the shares of our common stock and the distribution of this prospectus outside of the United States.
Basis of presentation
Except where the context otherwise requires or where
otherwise indicated, the terms “Kardigan,” “we,” “us,” “our,” “our company,” “Company” and “our business” refer to Kardigan, Inc. and its wholly owned subsidiaries,
Rancho Santa Fe Bio, Inc. and Prolaio, Inc.
The consolidated financial statements include the accounts of Kardigan, Inc. and its wholly owned subsidiaries, Rancho
Santa Fe Bio, Inc. and Prolaio, Inc., which were acquired in June 2024 and February 2025, respectively. Our financial statements have been prepared in accordance with generally accepted accounting principles in the United States
(“GAAP”). Our fiscal year ends on December 31 of each year. References to 2025 and 2024 refer to the year ended December 31, 2025 and December 31, 2024, respectively.
Certain monetary amounts, percentages and other figures included in this prospectus have been subject to rounding adjustments. Percentage amounts included in this
prospectus have not in all cases been calculated on the basis of such rounded figures, but on the basis of such amounts prior to rounding. For this reason, percentage amounts in this prospectus may vary from those obtained by performing the same
calculations using the figures in our consolidated financial statements included elsewhere in this prospectus. Certain other amounts that appear in this prospectus may not sum due to rounding.
Trademark and tradenames
We own, have applied for or have rights to use one
or more registered and common law trademarks, service marks and/or trade names in connection with our business in the United States, which may be used throughout this prospectus. This prospectus also includes trademarks, tradenames, and service
marks of third-parties which are the property of their respective owners. Our use or display of third-parties’ trademarks, service marks, tradenames or products in this prospectus and our other public filings is not intended to, and does not
imply a relationship with, or endorsement or sponsorship by us. Solely for convenience, the trademarks, service marks, logos and trade names referred to in this prospectus and our other public filings may appear without the ® , TM or SM symbols, but the omission of such references is not intended to indicate, in any way, that we will not assert, to the fullest extent under applicable law, our rights or the rights of
the applicable owner of or licensor to these trademarks, service marks and trade names.
Market, industry and other data
The market data and certain other statistical information used throughout this prospectus are based on independent industry publications, governmental publications,
reports by market research firms, or other independent sources that we believe to be reliable sources. Industry publications and third-party research, surveys, and studies generally indicate that their information has been obtained from sources
believed to be reliable, although they do not guarantee the accuracy or completeness of such information. We are responsible for all of the disclosures contained in this prospectus, and we believe that these sources are reliable; however, we have
not independently verified the information contained in such publications. While we are not aware of any misstatements regarding any third-party information presented in this prospectus, their estimates, in particular, as they relate to projections,
involve numerous assumptions, are subject to risks and uncertainties, and are subject to change based on various factors, including those discussed under the section titled “ Risk Factors ” and elsewhere in this prospectus. Some
data are also based on our good faith estimates.
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Prospectus summary
This summary highlights selected information contained elsewhere in this prospectus. This summary does not contain all of the information you should consider before
investing in our common stock. You should read this entire prospectus carefully, including the sections of this prospectus titled “Risk Factors,” “Special Note Regarding Forward-Looking Statements,” “Management’s
Discussion and Analysis of Financial Condition and Results of Operations” and our consolidated financial statements and the related notes included elsewhere in this prospectus, before making an investment decision.
Overview
Kardigan is a clinical-stage precision therapeutics company
developing medicines that target the root cause of specific cardiovascular diseases where no approved treatments exist. Our mission is to develop multiple targeted cardiovascular treatments in parallel that bring people with cardiovascular diseases
closer to the cures they deserve. We leverage deep domain expertise in cardiovascular biology, patient data, and advanced analytics to accelerate drug discovery and development, aiming to deliver impactful therapies efficiently and at scale.
Our management team includes leaders from MyoKardia, Inc. (“MyoKardia”) with a proven track record in cardiovascular drug development, including the
successful development and approval of mavacamten for hypertrophic cardiomyopathy.
Cardiovascular disease is the leading cause of death worldwide, yet innovation
has lagged due to drug development focused on broad, downstream, symptom-focused approaches despite disease heterogeneity and genetic variability, resulting in incremental advances and lengthy clinical trials. Kardigan is committed to overcoming
these challenges by advancing precision medicines that target the fundamental drivers of cardiovascular conditions, aiming to deliver meaningful improvements in patient outcomes.
Our pipeline
We are advancing three late-stage cardiovascular therapies in
indications for which no approved therapies currently exist:
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Danicamtiv . An investigational oral cardiac atrial and ventricular myosin activator for the treatment of genetic
dilated cardiomyopathy (“DCM”) caused by pathogenic variants in myosin heavy chain 7 (“MYH7”) and titin (“TTN”), the most common sarcomeric gene variants. Danicamtiv is designed to restore myosin function and
availability, directly targeting the underlying sarcomeric defects in DCM (i.e., impaired muscle contraction, force generation and movement of cardiac muscles). It has been evaluated in 10 completed clinical studies and is currently being studied in
our KINSHIP-DCM Phase 2b/3 adaptive, randomized, placebo-controlled trial.
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Ataciguat . An investigational oral, once-daily soluble guanylate cyclase (“sGC”) activator aimed at
slowing the progression of calcific aortic valve stenosis (“CAVS”) in patients with moderate disease. Ataciguat targets valvular interstitial cells to slow osteogenic and calcific remodeling, the underlying driver of disease progression
in CAVS. It is currently being evaluated in our KATALYST-AV Phase 2b clinical trial.
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Tonlamarsen . An investigational liver-directed antisense oligonucleotide (“ASO”) administered
once-monthly via subcutaneous injection, targeting hepatic angiotensinogen (“AGT”) for the management of blood pressure in acute severe hypertension (“ASH”) post-hospitalization. Tonlamarsen is supported by robust clinical
data and is being evaluated in our KARDINAL-ASH Phase 2 trial.
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Our Clinical Pipeline
Our Prolaio platform
The Prolaio platform
is Kardigan’s proprietary data and analytics platform, which includes Class I and Class II U.S. Food and Drug Administration (“FDA”) regulated devices, including 510(k) cleared algorithms. By integrating third-party
wearable sensors and Kardigan’s AI-driven analytics, the platform enables automated continuous physiologic data collection from patients in their daily lives outside of the clinic, which we refer to as “real-world data,” at a
higher frequency compared to traditional clinical trials. We use the Prolaio platform to collect and deliver high-frequency, objective patient data continuously throughout a clinical trial in a process we refer to as “longitudinal data
collection,” which enables us to optimize trial design, accelerate development, and support the development of novel digital measures that have the potential to be used in a clinical trial (“digital clinical endpoints”). This
technology is designed to enhance trial efficiency, patient engagement, and the precision of therapeutic insights.
Prolaio’s Benefits Today:
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Longitudinal data collection over time.
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Real-world data at scale.
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Near real-time visibility.
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Reduced patient burden.
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Rapid, personalized signal detection for faster decisions.
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Future Prolaio Benefits in Development:
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Digital clinical endpoints.
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Decentralized trials.
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Increased statistical power for smaller clinical trials.
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Increased probability of success.
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Our approach
Kardigan’s approach is built on four pillars:
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Target well-defined patient populations . We develop therapies designed for biologically defined subgroups, moving
beyond one-size-fits-all cardiovascular care.
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Target the root cause . We focus on causal biological drivers to enable disease modification, based on deep
mechanistic understanding.
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Harness technology . We leverage continuous real-world data, AI analytics, Class I and Class II FDA-regulated
devices, including 510(k)-cleared algorithms to seek to increase power, speed, and insight.
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Develop differently . We use data-driven and insight-rich strategies and seek to gain early regulatory alignment for
novel functional endpoints.
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We utilize an optimized clinical development framework, enhanced by our proprietary Prolaio data and analytics
platform, which enables the automated and continuous collection of vital signs and other physiologic data. We believe that the more frequent collection of such real-world data supports trial efficiency, patient engagement, and the development of
digital clinical endpoints, potentially enabling accelerated proof-of-concept trial timelines. There is no guarantee, however, that our framework or our use of our data and analytics technology will lead to accelerated proof-of-concept trial
timelines or faster trials, if any, and there is no guarantee that they will lead to a higher probability of success or any success.
Our management team
Kardigan’s management team is led by industry veterans with a proven track record in cardiovascular drug discovery, development, and company building,
including the co-founders and senior leaders of MyoKardia.
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Tassos Gianakakos, Co-Founder, President and Chief Executive Officer. Over
20 years of biopharma leadership, former CEO of MyoKardia, and co-founder of Prolaio, Inc., with extensive experience in building and scaling innovative biotechnology companies.
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Jay Edelberg, M.D., Ph.D., Co-Founder and Chief Medical Officer. Clinical
cardiologist and vascular biologist with more than two decades of experience in cardiovascular clinical research and drug development, including senior roles at MyoKardia, Sanofi, Bristol-Myers Squibb Company (“BMS Co.”), and
GlaxoSmithKline, and is also co-founder of Prolaio, Inc.
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Our team’s expertise spans clinical
research, translational science, and the successful advancement of multiple late-stage programs, supported by leading life sciences investors including ARCH Venture Partners, HRTG Partners, Perceptive Advisors, T. Rowe Price, and Fidelity
Management & Research.
Risks associated with our business
Our
business is subject to a number of risks of which you should be aware before making an investment decision. These risks include, but are not limited to, the following:
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We are a clinical-stage biopharmaceutical company with a limited operating history, which may make it difficult to evaluate
our current business and predict our future success and viability. We have incurred significant financial losses since our inception and anticipate that we will continue to incur significant financial losses for the foreseeable future.
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Even if this offering is successful, we will require additional funding in order to finance our operations. If we are
unable to raise capital when needed, or on acceptable terms, we could be forced to delay, reduce or eliminate our product development programs or commercialization efforts.
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Our business is highly dependent on the success of our product candidates, particularly Danicamtiv for genetic DCM,
Ataciguat for moderate CAVS, and Tonlamarsen for post-hospitalization management of ASH. If
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we are unable to successfully complete clinical development, obtain regulatory approval for or commercialize one or more of our product candidates, or if we experience delays in doing so, our
business will be materially harmed.
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The successful development of pharmaceutical products involves a lengthy and expensive process and is highly uncertain.
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We may experience challenges with the acquisition, development, enhancement or deployment of technology necessary for our
Prolaio platform.
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The regulatory approval processes of the FDA, the European Medicines Agency (the “EMA”), and other comparable
regulatory authorities are lengthy, time-consuming and inherently unpredictable, and if we are ultimately unable to obtain regulatory approval for our product candidates, our business will be substantially harmed.
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We are dependent on third parties having accurately generated, collected, interpreted and reported data from certain
preclinical studies and clinical trials that were previously conducted for our product candidates.
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Our use of the Prolaio platform to enhance clinical trial design and execution is a novel approach that may not result in
anticipated efficiencies or regulatory acceptance, which exposes us to unforeseen risks and makes it difficult for us to predict the time and cost of product development.
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If our clinical trials fail to replicate positive results from earlier preclinical studies or clinical trials conducted by
us or third parties, we may be unable to successfully develop, obtain regulatory approval for or commercialize our product candidates.
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We have concentrated our research and development efforts on the treatment of cardiovascular diseases, a field that faces
certain challenges in drug development.
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The number of patients with certain cardiovascular diseases for which we are developing our product candidates has not been
established with precision. If the actual number of patients with the diseases we elect to pursue with our product candidates is smaller than we anticipate, we may have difficulties in enrolling patients in our clinical trials, which may delay or
prevent development of our product candidates. Even if such product candidates are successfully developed and approved, the markets for our product candidates may be smaller than we expect and our revenue potential and ability to achieve
profitability may be materially adversely affected.
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We rely on third parties to assist in conducting our clinical trials. If they do not perform satisfactorily, we may not be
able to obtain regulatory approval or commercialize our product candidates, or such approval or commercialization may be delayed, and our business could be substantially harmed.
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If we fail to comply with our obligations in the agreements under which we license intellectual property rights from third
parties or otherwise experience disruptions to our business relationships with our licensors, or if any of our material license agreements are terminated, we could lose our rights to key intellectual property and components enabling our
technologies.
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Our success depends upon our ability to obtain and protect our intellectual property and proprietary information. If we or
our licensors are unable to obtain, maintain, defend and enforce patent or other intellectual property protection for any of our current or future product candidates or platform technologies, or if the scope of the patent or other intellectual
property protection obtained is not sufficiently broad or
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enforceable, third parties could develop and commercialize products and technology similar or identical to ours, and our ability to successfully commercialize any of our current or future product
candidates and platform technologies may be adversely affected.
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Our management and our independent registered public accounting firm have concluded that there is substantial doubt as to
our ability to continue as a going concern. If we cannot continue as a going concern, our stockholders may lose some or all of their investment in our company.
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There has been no prior public market for our common stock, and an active trading market may not develop or be sustained.
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The structure of our common stock may limit your ability to influence corporate matters and may limit your visibility with
respect to certain transactions.
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The summary risk factors described above should be read together with the text of the full risk factors in the
section titled “ Risk Factors ” and the other information set forth in this prospectus, including our consolidated financial statements and the related notes, as well as in other documents that we file with the Securities and
Exchange Commission (the “SEC”). The risks summarized above or described in full elsewhere in this prospectus are not the only risks that we face. Additional risks and uncertainties not presently known to us, or that we currently deem to
be immaterial may also materially adversely affect our business, financial condition, results of operations, and future growth prospects.
Corporate information
We were incorporated under the laws of the State of Delaware in August 2023 under the name EnCarda, Inc., and changed our name to Kardigan, Inc. in December
2024. Our principal executive offices are located at 506 Carnegie Center Drive, Suite 201, Princeton, NJ 08540, and our telephone number is (415) 573-3220. We have two subsidiaries, Rancho Santa Fe Bio, Inc., formed in October 2019 under the laws of
the State of Delaware, and Prolaio, Inc., formed in November 2021 under the laws of the State of Delaware. Our website address is www.kardigan.bio . The information contained in or accessible from our website is not incorporated into this
prospectus, and you should not consider it part of this prospectus. We have included our website address in this prospectus solely as an inactive textual reference.
Implications of being an emerging growth company and a smaller reporting company
We qualify as an “emerging growth company” as defined in the Jumpstart Our Business Startups Act of 2012, as amended (the “JOBS Act”). As an
emerging growth company, we may take advantage of specified reduced disclosure and other requirements that are otherwise applicable generally to public companies. These provisions include:
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being permitted to present only two years of audited financial statements, in addition to any required unaudited interim
financial statements, with correspondingly reduced “Management’s Discussion and Analysis of Financial Condition and Results of Operations” disclosure in this prospectus;
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reduced disclosure about our executive compensation arrangements;
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not being required to hold advisory votes on executive compensation or to obtain stockholder approval of any golden
parachute arrangements not previously approved;
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an exemption from the auditor attestation requirement in the assessment of our internal control over financial reporting
pursuant to Section 404 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”); and
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an exemption from compliance with the requirements of the Public Company Accounting Oversight Board regarding the
communication of critical audit matters in the auditor’s report on the financial statements.
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We may take advantage of these exemptions for
up to five years or such earlier time that we are no longer an emerging growth company. We would cease to be an emerging growth company on the date that is the earliest of (i) the last day of the fiscal year in which we have total annual gross
revenues of $1.235 billion or more; (ii) the last day of our fiscal year following the fifth anniversary of the date of the completion of this offering; (iii) the date on which we have issued more than $1.0 billion in
nonconvertible debt during the previous three years; or (iv) the date on which we are deemed to be a large accelerated filer under the rules of the SEC. We may choose to take advantage of some but not all of these exemptions. We have taken
advantage of reduced reporting requirements in this prospectus. Accordingly, the information contained herein may be different from the information you receive from other public companies in which you hold stock. Additionally, the JOBS Act provides
that an emerging growth company can take advantage of an extended transition period for complying with new or revised accounting standards. This allows an emerging growth company to delay the adoption of certain accounting standards until those
standards would otherwise apply to private companies. We have elected to avail ourselves of this exemption and, therefore, while we are an emerging growth company we will not be subject to new or revised accounting standards at the same time that
they become applicable to other public companies that are not emerging growth companies. As a result of this election, our financial statements may not be comparable to those of other public companies that comply with new or revised accounting
pronouncements as of public company effective dates. We have in the past chosen and may in the future choose to early adopt any new or revised accounting standards whenever such early adoption is permitted for private companies.
We are also a “smaller reporting company,” meaning that the market value of our shares held by non-affiliates plus
the proposed aggregate amount of gross proceeds to us as a result of this offering is less than $700 million and our annual revenues were less than $100 million during the most recently completed fiscal year. We may continue to be a
smaller reporting company after this offering if either (i) the market value of our shares held by non-affiliates is less than $250 million or (ii) our annual revenue was less than
$100 million during the most recently completed fiscal year and the market value of our shares held by non-affiliates is less than $700 million. If we are a smaller reporting company at the time we
cease to be an emerging growth company, we may continue to rely on exemptions from certain disclosure requirements that are available to smaller reporting companies. Specifically, as a smaller reporting company, we may choose to present only the two
most recent fiscal years of audited financial statements in our Annual Report on Form 10-K and, similar to emerging growth companies, smaller reporting companies have reduced disclosure obligations regarding
executive compensation.
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The offering
Common stock offered by us
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shares. |
Option to purchase additional shares of common stock offered by us
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We have granted the underwriters an option for a period of 30 days from the date of this prospectus to purchase up to additional shares of common stock from us at the public offering price, less underwriting discounts
and commissions, on the same terms as set forth in this prospectus. |
Common stock to be outstanding immediately after this offering
|
shares (or shares if the underwriters exercise their option to purchase additional shares of common stock in full). We will have two series of common stock authorized immediately following
this offering: voting common stock and non-voting common stock. We are offering voting common stock in this offering and unless otherwise noted, all references in this prospectus to our “common stock” refer to our voting common stock.
The non-voting common stock will not be listed for trading on any securities exchange. Immediately after consummation of this offering, no shares of non-voting stock will be outstanding, and we have no present intention to issue any shares of
non-voting common stock. |
Use of proceeds
|
We estimate that the net proceeds from the sale of our common stock in this offering will be approximately $ million (or approximately $ million if the underwriters exercise their option to
purchase additional shares of common stock in full), based on the assumed initial public offering price of $ per share, which is the midpoint of the price range set forth on the cover page of this prospectus, after
deducting underwriting discounts and commissions and estimated offering expenses payable by us. |
|
We currently intend to use the net proceeds we receive from this offering, together with our existing cash, cash equivalents and short-term investments to fund the clinical development of Danicamtiv, Ataciguat and
Tonlamarsen, to fund other research and development activities, and the remainder, if any, for working capital and other general corporate purposes. See the section titled “ Use of Proceeds ” for additional information.
|
Directed share program
|
At our request, the underwriters have reserved up to 5% of the shares of common stock being offered by this prospectus for sale at the initial public offering
price to our directors, officers, certain employees, and certain other persons associated with us. The sales will be made by J.P. Morgan Securities LLC and its affiliates, an underwriter of this offering, through a directed share program. We
do not know if these persons will choose to purchase all or any portion of these reserved shares, but any purchases they do make will reduce the number of shares of common stock available to the general public. Any reserved shares not so purchased
will be
|
7
Table of Contents
|
offered by the underwriters to the general public on the same terms as the other shares of common stock offered under this prospectus. Except for reserved shares purchased by our executive
officers and directors, shares purchased through the directed share program will not be subject to the lock-up agreements with the underwriters described elsewhere in this prospectus. Any shares sold in the directed share program to our directors or
officers who have entered into lock-up agreements with the underwriters will be subject to the provisions of such lock-up agreements. For additional information, see the section titled “ Underwriting—Directed share program .”
|
Voting and conversion rights
|
The rights of the holders of our voting common stock and non-voting common stock are identical, except with respect to voting and conversion. Each
share of common stock will be entitled to one vote and shares of non-voting common stock will be non-voting, except as required by law.
|
|
Holders of our voting common stock have no conversion rights. Holders of our non-voting common stock, if any, shall have the right to convert each share of our non-voting common stock into one share of voting common
stock at such holder’s election, provided that as a result of such conversion, such holder, together with its affiliates and any members of a Schedule 13(d) group with such holder, would not beneficially own in excess of 9.99% of our
common stock immediately prior to and following such conversion, except as expressly provided for in our third amended and restated certificate of incorporation and subject to certain limitations. See “ Risk Factors—Risks related to
this offering and ownership of our common stock—The structure of our common stock may limit your ability to influence corporate matters and may limit your visibility with respect to certain transactions ” and
“ Description of Capital Stock—Voting common stock and non-voting common stock ” for more information. |
Risk factors
|
Investing in our common stock involves a high degree of risk. See the section titled “ Risk Factors ” for a discussion of factors you should carefully consider before deciding whether to invest in our common stock.
|
Proposed trading symbol on The Nasdaq Stock Market
|
“KARD” |
Unless otherwise noted, the number of shares of our common stock that will be outstanding after this offering is based on
40,393,745 shares of common stock (which includes 520,833 shares of unvested restricted common stock and 667,731 shares of common stock issued upon early exercise of stock options that remain subject to repurchase) outstanding as of March 31, 2026,
after giving effect to the conversion of all outstanding shares of our redeemable convertible preferred stock into an aggregate of 29,987,476 shares of common stock on the date immediately preceding the completion of this offering, and
excludes:
|
|
9,857,662 shares of common stock issuable upon exercise of outstanding stock options as of March 31, 2026 under our
2023 Stock Option and Grant Plan, as amended (the “2023 Plan”), with a weighted average exercise price of $5.38 per share;
|
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Table of Contents
|
|
49,440 shares of common stock issuable upon the vesting of outstanding restricted stock units as of March 31, 2026
under the 2023 Plan;
|
|
|
6,639,979 shares of common stock issuable upon exercise of outstanding stock options granted after March 31, 2026
through May 26, 2026 pursuant to our 2023 Plan, with a weighted average exercise price of $15.00 per share;
|
|
|
2,205,290 shares of common stock reserved for future issuance as of March 31, 2026 under the 2023 Plan (which number of
shares does not include options to purchase shares of our common stock granted after March 31, 2026 and an increase of 5,800,000 shares of our common stock reserved for future issuance under our 2023 Plan after March 31, 2026), which will
cease to be available for issuance at the time that our 2026 Stock Option and Incentive Plan (the “2026 Plan”) becomes effective;
|
|
|
1,100,000 shares of common stock issuable upon the exercise of warrants outstanding as of March 31, 2026, with an exercise
price of $21.37 per share;
|
|
|
shares of our common stock reserved for future issuance under our 2026 Plan, which will become
effective on the date immediately prior to the effectiveness of the registration statement of which this prospectus forms a part, as well as any automatic increases in the number of shares of common stock reserved for future issuance under the 2026
Plan and any shares underlying outstanding stock awards granted under the 2023 Plan that expire or are repurchased, forfeited, cancelled, or withheld; and
|
|
|
shares of common stock reserved for future issuance under our 2026 Employee Stock Purchase Plan (the
“ESPP”), which will become effective on the date immediately prior to the date of effectiveness of the registration statement of which this prospectus forms a part, as well as any automatic increases in the number of shares of common
stock reserved for future issuance under the ESPP.
|
Unless otherwise
indicated, the information in this prospectus reflects or assumes the following:
|
|
a 1-for- reverse stock split of our common stock, which
will become effective prior to the completion of this offering;
|
|
|
the conversion of all outstanding shares of our redeemable convertible preferred stock outstanding into an aggregate of
29,987,476 shares of common stock on the date immediately preceding the completion of this offering;
|
|
|
no exercise of the outstanding stock options or warrants described above;
|
|
|
no exercise of the underwriters’ option to purchase up to an additional shares of common
stock in this offering;
|
|
|
no purchases by our directors and officers, existing stockholders or their affiliates pursuant to this offering, including
pursuant to our directed share program; and
|
|
|
the filing and effectiveness of our third amended and restated certificate of incorporation upon the completion of this
offering and the adoption of our amended and restated bylaws to be in effect upon the effectiveness of the registration statement of which this prospectus forms a part.
|
9
Table of Contents
Summary consolidated financial data
The following tables set forth our summary consolidated statements of operations for the years ended December 31, 2025 and 2024 and the three months ended March
31, 2026 and 2025, and our summary consolidated balance sheet data as of March 31, 2026. We have derived the summary consolidated statements of operations data for the years ended December 31, 2025 and 2024 from our audited consolidated
financial statements included elsewhere in this prospectus. The summary condensed consolidated statements of operations data for the three months ended March 31, 2026 and 2025 and summary condensed consolidated balance sheet data as of March 31,
2026 have been derived from our unaudited condensed consolidated financial statements included elsewhere in this prospectus. Our historical results are not necessarily indicative of the results that may be expected for any period in the future. Our
unaudited interim financial statements were prepared on the same basis as our audited financial statements and include, in the opinion of management, all adjustments, consisting of normal recurring adjustments, that are necessary for the fair
statement of the financial information set forth in those financial statements. You should read the following summary financial data together with “Management’s Discussion and Analysis of Financial Condition and Results of
Operations” and our consolidated financial statements and the related notes included elsewhere in this prospectus. The summary consolidated financial data included in this section are not intended to replace the consolidated financial
statements and are qualified in their entirety by our consolidated financial statements and the related notes included elsewhere in this prospectus.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three months ended March 31, |
|
|
Year ended December 31, |
|
(in thousands, except share and per share data) |
|
2026 |
|
|
2025 |
|
|
2025 |
|
|
2024 |
|
|
|
(unaudited) |
|
|
|
|
|
|
|
|
|
|
|
|
Consolidated Statements of Operations Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Research and development
|
|
$ |
45,067 |
|
|
$ |
18,774 |
|
|
$ |
153,086 |
|
|
$ |
84,294 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
General and administrative
|
|
|
13,643 |
|
|
|
7,304 |
|
|
|
48,750 |
|
|
|
12,362 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expenses
|
|
|
58,710 |
|
|
|
26,078 |
|
|
|
201,836 |
|
|
|
96,656 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from operations
|
|
|
(58,710 |
) |
|
|
(26,078 |
) |
|
|
(201,836 |
) |
|
|
(96,656 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other income (expense):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest income
|
|
|
2,793 |
|
|
|
832 |
|
|
|
6,850 |
|
|
|
1,293 |
|
Change in fair value of preferred stock tranche obligations
|
|
|
— |
|
|
|
(2,571 |
) |
|
|
1,100 |
|
|
|
6,751 |
|
Bargain purchase gain
|
|
|
— |
|
|
|
5,232 |
|
|
|
5,232 |
|
|
|
— |
|
Warrant issuance expense
|
|
|
— |
|
|
|
— |
|
|
|
(7,358 |
) |
|
|
— |
|
Other income (expense), net
|
|
|
(154 |
) |
|
|
399 |
|
|
|
(441 |
) |
|
|
(46 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss before income taxes
|
|
|
(56,071 |
) |
|
|
(22,186 |
) |
|
|
(196,453 |
) |
|
|
(88,658 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income tax benefit
|
|
|
— |
|
|
|
4,167 |
|
|
|
4,512 |
|
|
|
— |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss
|
|
$ |
(56,071 |
) |
|
$ |
(18,019 |
) |
|
$ |
(191,941 |
) |
|
$ |
(88,658 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss per share attributable to common stockholders, basic and diluted(1)
|
|
$ |
(6.14 |
) |
|
$ |
(2.45 |
) |
|
$ |
(23.63 |
) |
|
$ |
(14.00 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average common shares outstanding used in calculating net loss per share attributable to common
stockholders, basic and diluted(1)
|
|
|
9,126,825 |
|
|
|
7,347,962 |
|
|
|
8,122,117 |
|
|
|
6,332,771 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10
Table of Contents
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three months ended March 31, |
|
|
Year ended December 31, |
|
(in thousands, except share and per share data) |
|
2026 |
|
|
2025 |
|
|
2025 |
|
|
2024 |
|
|
|
(unaudited) |
|
|
|
|
|
|
|
Pro forma net loss per share attributable to common stockholders, basic and diluted (unaudited)(2)
|
|
$ |
(1.43 |
) |
|
|
|
|
|
$ |
(5.04 |
) |
|
|
|
|
Pro forma weighted-average common shares outstanding, basic and diluted (unaudited)(2)
|
|
|
39,114,301 |
|
|
|
|
|
|
|
38,109,593 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
See Note 2 and Note 13 to our audited consolidated financial statements and our unaudited condensed consolidated financial statements included elsewhere in this prospectus for details on the calculation of basic and
diluted net loss per share attributable to common stockholders. |
(2) |
|
Pro forma basic and diluted net loss per share attributable to common stockholders has been prepared to give effect to adjustments to our capital structure arising in connection with the completion of this offering and
is calculated by dividing the pro forma net loss attributable to common stockholders by the pro forma weighted-average common shares outstanding for the period. Pro forma weighted-average common shares outstanding is computed by adjusting the
weighted-average common shares outstanding to give pro forma effect to the conversion of all 29,987,476 shares of our redeemable convertible preferred stock outstanding as of March 31, 2026 into an aggregate of 29,987,476 shares of common
stock as if such conversion had occurred on January 1, 2025. Pro forma basic and diluted net loss per share attributable to common stockholders does not include the effect of the shares expected to be sold in this offering. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of March 31, 2026 |
|
(in thousands) |
|
Actual |
|
|
Pro
forma(1) |
|
|
Pro forma
as adjusted(2) |
|
|
|
|
|
Consolidated Balance Sheet Data
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
$ |
81,548 |
|
|
$ |
81,548 |
|
|
|
|
|
Short-term investments
|
|
|
205,560 |
|
|
|
205,560 |
|
|
|
|
|
Working capital(3)
|
|
|
266,469 |
|
|
|
266,469 |
|
|
|
|
|
Total assets
|
|
|
348,190 |
|
|
|
348,190 |
|
|
|
|
|
Total liabilities
|
|
|
51,270 |
|
|
|
51,270 |
|
|
|
|
|
Redeemable convertible preferred stock
|
|
|
597,546 |
|
|
|
— |
|
|
|
|
|
Total stockholders’ (deficit) equity
|
|
|
(300,626 |
) |
|
|
296,920 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
The pro forma consolidated balance sheet data gives effect to (i) the conversion of all 29,987,476 outstanding shares of our redeemable convertible preferred stock into an aggregate of 29,987,476 shares of our
common stock on the date immediately preceding the completion of this offering and (ii) the filing and effectiveness of our third amended and restated certificate of incorporation, which will occur upon the completion of this offering.
|
(2) |
|
The pro forma as adjusted consolidated balance sheet data gives effect to (i) the pro forma adjustments set forth in footnote (1) above and (ii) the issuance and sale of shares
of our common stock in this offering at an assumed initial public offering price of $ per share, which is the midpoint of the price range set forth on the cover page of this prospectus, after deducting underwriting
discounts and commissions and estimated offering expenses payable by us. Pro forma as adjusted balance sheet data is illustrative only and will change based on the actual initial public offering price and other terms of this offering determined at
pricing. Each $1.00 increase (decrease) in the assumed initial public offering price of $ per share, which is the midpoint of the price range set forth on the cover page of this prospectus, would increase (decrease) the
pro forma as adjusted amount of each of cash, cash equivalents and short-term investments, working capital, total assets and total stockholders’ (deficit) equity by approximately $ , assuming that the number of
shares offered by us, as set forth on the cover page of this prospectus, remains the same, and after deducting underwriting discounts and commissions and estimated offering expenses payable by us. Each 1,000,000 increase (decrease) in the number of
shares offered by us, as set forth on the cover page of this prospectus, would increase or decrease the pro forma as adjusted amount of each of cash, cash equivalents and short-term investments, working capital, total assets and total
stockholders’ (deficit) equity by approximately $ million, assuming no change in the assumed initial offering price per share, and after deducting underwriting discounts and commissions and estimated offering
expenses payable by us. |
(3) |
|
We define working capital as current assets less current liabilities. See our audited consolidated financial statements and our unaudited condensed consolidated financial statements and related notes appearing elsewhere
in this prospectus for further details regarding our current assets and current liabilities. |
11
Table of Contents
Risk factors
Investing in our common stock involves a high degree of risk. You should consider and read carefully all of the risks and uncertainties described below, as well as
the other information in this prospectus, including our consolidated financial statements and the related notes appearing elsewhere in this prospectus and “Management’s Discussion and Analysis of Financial Condition and Results of
Operations” before deciding whether to invest in our common stock. The risks described below are not the only ones facing us. The following risks or additional risks and uncertainties not presently known to us or that we currently believe to
be immaterial could materially and adversely affect our business, financial condition, results of operations and growth prospects. In such an event, the trading price of our common stock could decline, and you may lose all or part of your
investment.
This prospectus also contains forward-looking statements and estimates that involve risks and uncertainties. Our actual results could differ
materially from those anticipated in our forward-looking statements as a result of specific factors, including the risks and uncertainties described below.
Risks related to our limited operating history, financial condition and need for additional capital
We are a clinical-stage biopharmaceutical company with a limited operating history, which may make it difficult to evaluate our current business and predict our
future success and viability. We have incurred significant financial losses since our inception and anticipate that we will continue to incur significant financial losses for the foreseeable future.
We are a clinical-stage biopharmaceutical company with a limited operating history. We were formed in August 2023 as EnCarda, Inc., and our operations to date have been
limited to organizing and staffing our company, business planning, including our acquisitions, raising capital, identifying, licensing and developing potential product candidates, acquiring, deploying and developing our Prolaio platform and
technology, securing intellectual property rights, and planning and undertaking preclinical studies and clinical trials. Our lead product candidates include Danicamtiv for genetic dilated cardiomyopathy (“DCM”), Ataciguat for moderate
calcific aortic valve stenosis (“CAVS”) and Tonlamarsen for post-hospitalization management of acute severe hypertension (“ASH”).
We have
not yet demonstrated an ability to generate revenues, obtain regulatory approvals, manufacture any product on a commercial scale or arrange for a third party to do so on our behalf or conduct sales and marketing activities necessary for successful
product commercialization. Our limited operating history as a company makes any assessment of our future success and viability subject to significant uncertainty. We will encounter risks and difficulties frequently experienced by early-stage
biopharmaceutical companies in rapidly evolving fields, and we have not yet demonstrated an ability to successfully overcome such risks and difficulties. If we do not address these risks and difficulties successfully, our business will suffer.
The success of our business depends primarily upon our ability to identify, develop, and commercialize our product candidates, Danicamtiv, Ataciguat and Tonlamarsen and
develop our Prolaio platform. We do not know whether we will be able to develop any product candidates that succeed through preclinical and clinical development or products of commercial value. We have no products approved for commercial sale and
have not generated any revenue from product sales to date. We will continue to incur significant research and development and other expenses related to our preclinical and clinical development and ongoing operations. As a result, we are not
profitable and have incurred losses in each period since our inception. Net losses and negative cash flows have had, and will continue to have, an adverse effect on our stockholders’ equity and working capital. Our net losses totaled $56.1
million and $18.0 million for the three months ended March 31,
12
Table of Contents
2026 and 2025, respectively, and $191.9 million and $88.7 million for the year ended December 31, 2025 and 2024, respectively. As of March 31, 2026, we had not yet generated
revenues and had an accumulated deficit of $337.2 million. We expect to continue to incur significant losses for the foreseeable future, and we expect these losses to increase as we continue our research and development of, and seek regulatory
approvals for, our product candidates.
We anticipate that our expenses will increase substantially if, and as, we:
|
|
advance our product candidates through clinical development, including as we continue to advance Danicamtiv, Ataciguat and
Tonlamarsen in later-stage clinical trials;
|
|
|
continue to develop our Prolaio platform;
|
|
|
seek regulatory approvals from the U.S. Food and Drug Administration (the “FDA”) or other foreign regulatory
authorities for our product candidates that successfully complete clinical trials;
|
|
|
hire additional clinical, quality control, medical, scientific and other technical personnel to support the clinical
development of our product candidates;
|
|
|
experience an increase in headcount as we expand our research and development organization and market development and pre-commercial planning activities;
|
|
|
undertake any pre-commercial or commercial activities to establish sales, marketing
and distribution capabilities;
|
|
|
advance our existing and potential future preclinical-stage product candidates into clinical development;
|
|
|
seek to identify, acquire and develop additional product candidates, including through business development efforts to
invest in or in-license other technologies or product candidates, which may include opportunities to leverage our Prolaio platform;
|
|
|
maintain, expand and protect our intellectual property portfolio;
|
|
|
experience heightened regulatory scrutiny;
|
|
|
make milestone, royalty or other payments due under our existing license agreements with MyoKardia, Inc.
(“MyoKardia”), Bristol-Myers Squibb Company (“BMS Co.”), Sanofi, the Mayo Foundation for Medical Education and Research (“Mayo”) and Ionis Pharmaceuticals, Inc. (“Ionis”) and our purchase agreements
with Rancho Santa Fe Bio, Inc. (“RSF”) and Prolaio, Inc., and any future in-license or collaboration agreements;
|
|
|
make milestone, royalty, interest or other payments due under any future licensing, financing or other arrangements with
third parties; and
|
|
|
incur additional legal, accounting, and other expenses associated with operating as a public company.
|
Biopharmaceutical product development entails substantial upfront capital expenditures and significant risk that any potential product candidate
will fail to demonstrate adequate efficacy or an acceptable safety profile, gain regulatory approval, secure market access and reimbursement and become commercially viable, and therefore any investment in us is highly speculative. Accordingly,
before making an investment in us, you should consider our prospects, factoring in the costs, uncertainties, delays and difficulties frequently encountered by companies in clinical development, especially clinical-stage biopharmaceutical companies
such as ours. Any predictions you make about our future success or viability may not be as accurate as they would otherwise be if we had a longer operating history or a history of successfully developing and commercializing pharmaceutical products.
We may encounter unforeseen expenses, difficulties, complications, delays and other known or unknown factors in achieving our business objectives.
13
Table of Contents
Additionally, our expenses could increase beyond our expectations if we are required by the FDA, European Medicines
Agency (the “EMA”), or other comparable regulatory authorities to perform clinical trials in addition to those that we currently expect, or if there are any delays in establishing appropriate manufacturing arrangements for or in
completing our clinical trials or the development of any of our product candidates.
Even if this offering is successful, we will require additional funding in
order to finance operations. If we are unable to raise capital when needed, or on acceptable terms, we could be forced to delay, reduce or eliminate our product development programs or commercialization efforts.
Developing biopharmaceutical products, including conducting preclinical studies and clinical trials, is a very time-consuming, expensive and uncertain process that takes
years to complete. We expect our expenses to continue to increase in connection with our ongoing activities, particularly as we conduct clinical trials of, and seek regulatory and marketing approval for, our product candidates. Even if our current
or future product candidates are approved for commercial sale, we anticipate incurring significant costs associated with commercializing any approved product candidate. To date, we have funded our operations through private financings. We expect our
expenses to increase in connection with our ongoing activities, particularly as we continue the clinical and preclinical development of our product candidates, continue to identify new product candidates, develop and deploy our Prolaio platform,
commence additional preclinical studies and clinical trials, and continue to identify and develop additional product candidates either through internal development or through acquisitions or in-licensing
product candidates.
As of March 31, 2026, we had $ 287.1 million of cash, cash equivalents and short-term investments. We believe that our existing cash,
cash equivalents and short-term investments, together with the anticipated net proceeds from this offering, will enable us to fund our operating expenses and capital expenditure requirements through . We have based this
estimate on assumptions that may prove to be wrong, and we could utilize our available capital resources sooner than we expect. We may also raise additional financing on an opportunistic basis in the future. For example, we may seek additional
capital due to favorable market conditions or strategic considerations even if we believe we have sufficient funds for our current or future operating plans. Attempting to secure additional financing may divert our management from our day-to-day activities, which may adversely affect our ability to develop our product candidates. Our future capital requirements will depend on many factors, including but not
limited to:
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the scope, timing, progress, costs and results of discovery, preclinical development and clinical trials for our current or
future product candidates;
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the number of clinical trials required for regulatory approval of our current or future product candidates;
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the costs, timing and outcome of regulatory review of any of our current or future product candidates;
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the timing and amount of any milestones, royalties or other payments due in connection with our acquisitions and licenses,
as applicable;
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the cost of manufacturing clinical and commercial supplies of our current or future product candidates;
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the costs and timing of preparing, filing and prosecuting patent applications, maintaining and enforcing our intellectual
property rights and defending any intellectual property-related claims, including any claims by third parties that we are infringing upon their intellectual property rights;
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our ability to deploy and develop the Prolaio platform, including in connection with our current and future product
candidates;
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our ability to maintain existing, and establish new, strategic collaborations or other arrangements and the financial terms
of any such agreements, including the timing and amount of any future milestone, royalty or other payments due under any such agreement;
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the costs and timing of future commercialization activities, including manufacturing, marketing, sales and distribution,
for any of our product candidates for which we receive marketing approval;
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the revenue, if any, received from commercial sales of our product candidates for which we receive marketing approval;
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expenses to attract, hire and retain skilled personnel;
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the costs of operating as a public company;
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our ability to establish a commercially viable pricing structure and obtain approval for coverage and adequate
reimbursement from third-party and government payors;
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the effect of macroeconomic trends, including inflation, tariffs and fluctuating interest rates;
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any potential supply chain interruptions or delays;
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the effect of competing technological and market developments; and
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the extent to which we acquire or invest in additional businesses, products and technologies.
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Because of the numerous risks and uncertainties associated with research and development of product candidates, we are unable to predict the timing or amount of our
working capital requirements. In addition, if we obtain regulatory approval for our product candidates, we expect to incur significant commercialization expenses related to product manufacturing, marketing, sales and distribution which make it
difficult to predict when or if we will be able to achieve or maintain profitability. Furthermore, upon the completion of this offering, we expect to incur additional costs associated with operating as a public company. Accordingly, we will need to
obtain substantial additional funding in order to support our continuing operations. Our ability to raise additional funds will depend on financial, economic, political and market conditions and other factors, over which we may have no or limited
control. Additional funds may not be available when we need them, on terms that are acceptable to us, or at all. If we fail to obtain necessary capital when needed on acceptable terms, or at all, it could force us to delay, limit, reduce or
terminate our product development programs, future commercialization efforts or other operations.
Our management and our independent registered public
accounting firm have concluded that there is substantial doubt as to our ability to continue as a going concern. If we cannot continue as a going concern, our stockholders may lose some or all of their investment in our company.
Our audited consolidated financial statements and unaudited condensed consolidated financial statements, each included elsewhere in this prospectus, were prepared
assuming that we will continue as a going concern. The going concern basis of presentation assumes that we will continue in operation for the foreseeable future and will be able to realize our assets and satisfy our liabilities in the normal course
of business and do not include any adjustments to reflect the possible future effects on the recoverability and classification of assets or amounts and classification of liabilities that may result from our inability to continue as a going concern.
As of March 31, 2026, we had cash, cash equivalents and short-term investments of $287.1 million. We have incurred operating losses since inception. Our net losses were $56.1 million and $18.0 million for the three months ended March
31, 2026 and 2025, respectively and $191.9 million and $88.7 million for the years ended December 31, 2025 and 2024, respectively. As of March 31, 2026, we had an accumulated deficit of $337.2 million. Based on our current
capital resources, which consist of cash, cash equivalents and marketable securities on hand at March 31, 2026, we will not have sufficient cash on hand to support current operations for at least twelve months from May 26, 2026, the date of
issuance of the unaudited condensed consolidated financial statements. This condition raises substantial doubt about our ability to continue as a going concern.
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Even after giving effect to this offering, substantial doubt may continue to exist regarding our ability to continue
as a going concern. If we cannot continue as a going concern, we may have to liquidate our assets and may receive less than the value at which those assets are carried on our consolidated financial statements, and it is likely that our stockholders
may lose some or all of their investment in us.
Raising additional capital may cause dilution to our stockholders, restrict our operations or require us to
relinquish rights to our product candidates.
Until such time, if ever, as we can generate substantial product revenue, we expect to finance our operations
with our existing cash, cash equivalents and short-term investments, the net proceeds from this offering, any future equity, debt or other financings and upfront and milestone and royalty payments, if any, received under any future licenses or
collaborations. If we raise additional capital through the sale of equity or convertible debt securities, or issue any equity or convertible debt securities in connection with a collaboration agreement or other contractual arrangement, your
ownership interest will be diluted, and the terms of these securities may include liquidation or other preferences that adversely affect your rights as a holder of our common stock. In addition, the possibility of such issuance may cause the market
price of our common stock to decline. Debt financing, if available, may result in increased fixed payment obligations and involve agreements that include covenants limiting or restricting our ability to take specific actions, such as incurring
additional debt, making capital expenditures, declaring dividends or acquiring, selling or licensing intellectual property rights or assets, which could adversely impact our ability to conduct our business.
If we raise additional funds through collaborations, strategic alliances or marketing, distribution or licensing arrangements with third parties, we may have to
relinquish valuable rights to our intellectual property, technologies, future revenue streams or product candidates or grant licenses on terms that may not be favorable to us. We could also be required to seek funds through arrangements with
collaborators or others at an earlier stage than otherwise would be desirable. Any of these occurrences may have a material adverse effect on our business, operating results and prospects.
We maintain the majority of our cash and cash equivalents in accounts with major U.S. and multi-national financial institutions, and our deposits at certain of these
institutions exceed insured limits. Market conditions and changes in financial regulations and policies can impact the viability of these institutions. In the event of failure of any of the financial institutions where we maintain our cash and cash
equivalents, there can be no assurance that we would be able to access uninsured funds in a timely manner or at all. Any inability to access or delay in accessing these funds could adversely affect our business and financial position. In addition,
changes in regulations governing financial institutions are beyond our control and difficult to predict; consequently, the impact of such changes on our business and results of operations is difficult to predict and may have an adverse effect on us.
Risks related to our business
Our business is highly dependent on
the success of our product candidates, particularly Danicamtiv for genetic DCM, Ataciguat for moderate CAVS, and Tonlamarsen for post-hospitalization management of ASH. If we are unable to successfully complete clinical development, obtain
regulatory approval for or commercialize one or more of our product candidates, or if we experience delays in doing so, our business will be materially harmed.
To date, as an organization, we have not completed the development of any product candidates. Our future success and ability to generate revenue from our product
candidates is dependent on our ability to successfully develop, obtain regulatory approval for and commercialize one or more of our product candidates. All of our product candidates will require substantial additional investment for clinical
development, regulatory review and approval in one or more jurisdictions. If any of our product candidates, particularly Danicamtiv for genetic
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DCM, Ataciguat for moderate CAVS and Tonlamarsen for ASH, encounters safety or efficacy problems, development delays or regulatory issues or other problems, our development plans and business
would be materially harmed.
We may not have the financial resources to continue development of our product candidates if we experience any issues that delay or
prevent regulatory approval of, or our ability to commercialize, our product candidates, including:
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our inability to demonstrate to the satisfaction of the FDA, EMA, or other comparable regulatory authorities that our
product candidates are safe and effective;
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insufficiency of our financial and other resources to complete the necessary clinical trials and preclinical studies;
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negative or inconclusive results from our clinical trials, preclinical studies or the clinical trials of others for product
candidates similar to ours, leading to a decision or requirement to conduct additional clinical trials or preclinical studies or abandon a program;
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future product-related adverse events (“AEs”) experienced by subjects in our clinical trials, including
unexpected toxicity results, or by individuals using drugs or therapeutic biologics similar to our product candidates;
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delays in submitting an Investigational New Drug (“IND”) application or other regulatory submission to the FDA,
EMA, or other comparable regulatory authorities, or delays or failure in obtaining the necessary approvals from regulators to commence a clinical trial or a suspension or termination, or hold, of a clinical trial once commenced;
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conditions imposed by the FDA, EMA, or other comparable regulatory authorities regarding the scope or design of our
clinical trials;
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poor effectiveness of our product candidates during clinical trials;
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better than expected performance of control arms, such as placebo groups, which could lead to negative or inconclusive
results from our clinical trials;
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delays in enrolling subjects in our clinical trials;
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high drop-out rates of subjects from our clinical trials;
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inadequate supply or quality of product candidates or other materials necessary for the conduct of our clinical trials;
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higher than anticipated clinical trial or manufacturing costs;
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unfavorable FDA, EMA or comparable regulatory authority inspection and review of our clinical trial sites;
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failure of our third-party contractors or investigators to comply with regulatory requirements or the clinical trial
protocol or otherwise meet their contractual obligations in a timely manner, or at all;
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competition with existing platforms, product candidates or therapies;
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delays and changes in regulatory requirements, policies and guidelines, including the imposition of additional regulatory
oversight around clinical testing generally or with respect to our therapies in particular;
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insufficiency of our financial and other resources to complete the necessary activities to prepare for launch
commercialization and/or resources to address coverage and reimbursement matters to the extent any of our product candidates receive approval; or
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varying interpretations of data by the FDA, EMA, or other comparable regulatory authorities.
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The successful development of pharmaceutical products involves a lengthy and expensive process and is highly uncertain.
Successful development of pharmaceutical products involves a lengthy and expensive process, is highly uncertain, and is dependent on numerous factors, many of which are
beyond our control. Failure can occur at any time during the preclinical study or clinical trial process. A number of companies in the pharmaceutical and biotechnology industries have suffered significant setbacks in clinical development even after
achieving promising results in earlier studies, and the historical failure rate for product candidates in our industry is high. The results from preclinical studies or early clinical trials of a product candidate may not predict the results of later
clinical trials of the product candidate, and interim results of a clinical trial are not necessarily indicative of final results. Moreover, preclinical and clinical data are often susceptible to varying interpretations and analyses. Product
candidates that appear promising in the early phases of development may fail to reach the market for several reasons, including:
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clinical trial results may show the product candidates to be less effective than expected (for example, a clinical trial
could fail to meet its primary or key secondary endpoint(s)) or have an unacceptable safety or tolerability profile;
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failure to receive the necessary regulatory approvals or a delay in receiving such approvals, which, among other things,
may be caused by patients who fail the trial screening process, slow enrollment in clinical trials, patients dropping out of trials, patients lost to follow-up, length of time to achieve trial endpoints,
additional time requirements for data analysis or New Drug Application (“NDA”) or similar foreign application preparation, discussions with the FDA, EMA, or other comparable regulatory authority, an FDA, EMA, or other comparable
regulatory request for additional preclinical or clinical data (such as long-term toxicology studies) or unexpected safety or manufacturing issues;
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preclinical study results may show the product candidate to be less effective than desired or to have harmful side effects;
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post-marketing approval requirements; or
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the proprietary rights of others and their competing products and technologies that may prevent our product candidates from
being commercialized.
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Even if we are successful in obtaining marketing approval, commercial success of any approved products will also depend in
large part on the availability of coverage and adequate reimbursement from third-party payors, including government payors such as the Medicare and Medicaid programs and managed care organizations in the United States or country-specific
governmental organizations in foreign countries, which may be affected by existing and future healthcare reform measures designed to reduce the cost of healthcare. Third-party payors could require us to conduct additional studies, including
post-marketing studies related to the cost effectiveness of a product, to qualify for reimbursement, which could be costly and divert our resources. If government and other healthcare payors were not to provide coverage and adequate reimbursement
for our products once approved, market acceptance and commercial success would be reduced. Even if we are able to obtain coverage and adequate reimbursement for our products once approved, there may be features or characteristics of our products,
such as dose preparation requirements, that prevent our products from achieving market acceptance by the healthcare or patient communities.
In addition, if any of
our product candidates receive marketing approval, we will be subject to significant regulatory obligations regarding the submission of safety and other post-marketing information and reports
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and registration, and will need to continue to comply (or ensure that our third-party providers comply) with current Good Manufacturing Practices (“cGMPs”) and Good Clinical Practices
(“GCPs”) for any clinical trials that we conduct post-approval. In addition, there is always the risk that we, a regulatory authority or a third party might identify previously unknown problems with a product post-approval, such as AEs
of unanticipated severity or frequency. Compliance with these requirements is costly, and any failure to comply or other issues with our product candidates post-approval could adversely affect our business, financial condition and results of
operations.
Due to the significant resources required for the development of our pipeline, and depending on our ability to access capital, we must prioritize
the development of certain product candidates over others. Moreover, we may fail to expend our limited resources on product candidates or indications that may have been more profitable or for which there is a greater likelihood of success.
Our lead product candidates, Danicamtiv for treatment of genetic DCM, Ataciguat for treatment of moderate CAVS, and Tonlamarsen for post-hospitalization
management of ASH, are at various stages of clinical development. Danicamtiv is being evaluated in the ongoing KINSHIP-DCM Phase 2b/3 trial, Ataciguat is being evaluated in an ongoing KATALYST-AV Phase 2b trial and Tonlamarsen is being evaluated in the ongoing KARDINAL-ASH Phase 2 trial. We seek to rapidly advance discovery and development of
transformational medicines for patients suffering from cardiovascular diseases.
Due to the significant resources required for the development of our product
candidates, we must decide which product candidates and indications to pursue and advance and the amount of resources to allocate to each. Our decisions concerning the allocation of research, development, collaboration, management and financial
resources toward particular product candidates, therapeutic areas or indications may not lead to the development of viable commercial products and may divert resources away from better opportunities. If we make incorrect determinations regarding the
viability or market potential of any of our product candidates or misread trends in the pharmaceutical industry, in particular for cardiovascular diseases, our business, financial condition and results of operations could be materially and adversely
affected. As a result, we may fail to capitalize on viable commercial products or profitable market opportunities, be required to forego or delay pursuit of opportunities with other product candidates or other diseases and disease pathways that may
later prove to have greater commercial potential than those we choose to pursue, or relinquish valuable rights to such product candidates through collaboration, licensing or royalty arrangements in cases in which it would have been advantageous for
us to invest additional resources to retain sole development and commercialization rights.
We may seek to grow our business through acquisitions or
investments in new or complementary businesses, products or technologies, through the licensing of products or technologies from third parties or other strategic alliances. The failure to manage acquisitions, investments, licenses or other strategic
alliances, or the failure to integrate them with our existing business, could have a material adverse effect on our operating results, dilute our stockholders’ ownership, increase our debt or cause us to incur significant expense.
Our success depends on our ability to continually enhance and broaden our product offerings in response to changing clinicians’ and patients’ needs,
competitive technologies and market pressures. Accordingly, from time to time we may consider opportunities to acquire, make investments in or license other technologies, products and businesses that may enhance our capabilities, complement our
existing products and technologies or expand the breadth of our markets or customer base. For example, in February 2025, we acquired 100% of the equity interests in Prolaio, Inc., a clinical intelligence company developing patient data collection
software,
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and in June 2024, we acquired RSF, a clinical-stage cardiovascular platform company. Potential and completed acquisitions, strategic investments, licenses and other alliances involve numerous
risks, including:
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difficulty assimilating or integrating acquired or licensed technologies, products, employees or business operations;
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issues maintaining uniform standards, procedures, controls and policies;
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unanticipated costs associated with acquisitions or strategic alliances, including the assumption of unknown or contingent
liabilities and the incurrence of debt or future write-offs of intangible assets or goodwill;
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diversion of management’s attention from our core business and disruption of ongoing operations;
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adverse effects on existing business relationships with suppliers, sales agents, health care facilities, surgeons and other
health care providers;
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risks associated with entering new markets in which we have limited or no experience;
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potential losses related to investments in other companies;
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potential loss of key employees of acquired businesses; and
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increased legal and accounting compliance costs.
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We do not know if we will be able to identify acquisitions or strategic relationships we deem suitable, whether we will be able to successfully complete any such
transactions on favorable terms, if at all, or whether we will be able to successfully integrate any acquired business, product or technology into our business or retain any key personnel, suppliers, sales agent, health care facilities, physicians
or other health care providers. Our ability to successfully grow through strategic transactions depends upon our ability to identify, negotiate, complete and integrate suitable target businesses, technologies or products and to obtain any necessary
financing. These efforts could be expensive and time-consuming and may disrupt our ongoing business and prevent management from focusing on our operations. In addition, the integration of any business that we may acquire in the future may disrupt
our existing business and may be a complex, risky and costly endeavor for which we may never realize the full benefits. Furthermore, we may experience losses related to investments in other companies, including as a result of failure to realize
expected benefits or the materialization of unexpected liabilities or risks, which could have a material negative effect on our results of operations and financial condition. Accordingly, although there can be no assurance that we will undertake or
successfully complete any additional transactions of the nature described above, any additional transactions that we do complete could have a material adverse effect on our business, financial condition, results of operations and prospects.
To finance any acquisitions, investments or strategic alliances, we may choose to issue shares of our common stock as consideration, which could dilute the ownership of
our stockholders. If the price of our common stock is low or volatile, we may be unable to consummate any acquisitions, investments or strategic alliances using our common stock as consideration. Additional funds may not be available on terms that
are favorable to us, or at all.
We may experience challenges with the acquisition, development, enhancement or deployment of technology necessary for our
Prolaio platform.
The Prolaio platform requires sophisticated computer systems and software for data collection, data processing, cloud-based platforms,
analytics, and other applications and technologies. We are building artificial intelligence (“AI”) technologies into internal applications and solutions and we expect our use of AI to increase.
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Some of these technologies are changing rapidly and we must continue to adapt to these changes in a timely and effective manner at an acceptable cost. There can be no guarantee that we will be
able to develop, acquire or integrate new technologies, that these new technologies will meet our needs or those of our clients’ or achieve expected investment goals, or that we will be able to do so as quickly or cost-effectively as our
competitors. Our continued success will depend on our ability to adapt to changing technologies, manage and process ever-increasing amounts of data and information and improve the performance, features and reliability of our services. We may
experience difficulties that could delay or prevent the successful design, development, testing, introduction or marketing of our services. New services, or enhancements to existing services, may not adequately meet our own requirements or those of
current and prospective clients or achieve any degree of significant market acceptance. Regulations relating to the use of AI and the interpretation of those regulations by regulators, courts and others are in the early stages of development and
evolving, which may make it difficult to identify adequate compliance requirements or suitable governance practices to meet those requirements. These types of failures could have a material adverse effect on our operating results, financial
condition and reputation.
We have entered into, and may in the future enter into, related party transactions that may have terms that are less favorable to
us.
We have in the past been and may in the future be party to certain transactions with certain entities affiliated with our directors, executive officers
and principal stockholders. For example, we acquired Prolaio, Inc. At the time of the acquisition, Tassos Gianakakos, our Chief Executive Officer, also served as Prolaio, Inc.’s Chief Executive Officer and Jay Edelberg, our Chief Medical
Officer, served as its President, Research & Development. Mr. Gianakakos and Dr. Edelberg owned 55.7% and 16.6%, respectively, of Prolaio, Inc. at the time of its acquisition by us. For additional information related to this and
other related party transactions, please see the section titled “ Certain Relationships and Related Person Transactions. ” Although we believe that these transactions are in our best interests, we cannot assure
you that these transactions were entered into on terms as favorable to us as those that could have been obtained in an arm’s-length transaction with unaffiliated third-parties. Conversely, we may not be
able to enter into transactions with third parties on terms as favorable as the terms of existing or any future transactions with related parties. Further, the appearance of conflicts of interest created by related party transactions could impair
the confidence of our investors. It is possible that a conflict of interest could have a material adverse effect on our business, results of operations, and financial condition.
In connection with the initial public offering, we plan to adopt a written related-person transactions policy that sets forth our policies and procedures regarding the
identification, review, consideration and oversight of related-person transactions. For a description of our related-person transactions policy, please see the section titled “ Certain Relationships and Related Person
Transactions—Policies and procedures for transactions with related persons.”
We, third-parties on which we rely and our service providers are,
or may become, subject to a variety of stringent and evolving data privacy and security laws, regulations, and rules, contractual obligations, industry standards, policies and other obligations related to data privacy and security. Any actual or
perceived failure to comply with such obligations could expose us to significant fines or other penalties and otherwise harm our business and operations.
In
the ordinary course of our business, we and the third parties upon which we rely (such as our third party Contract Research Organizations (“CROs”) and other contractors and consultants) collect, receive, store, process, generate, use,
transfer, disclose, make accessible, protect, secure, dispose of, transmit, and share (collectively, “process”) personal data and other sensitive information, including proprietary and confidential business data, trade secrets,
intellectual property, sensitive third-party data, business plans, transactions,
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financial information and data we collect about trial participants in connection with clinical trials (collectively, sensitive data). Through our acquisition of Prolaio, Inc., we have acquired an
FDA-cleared patient data collection software platform and cardiovascular clinical data, which we use to enhance data collection and analysis in our clinical trials. Prolaio’s operations significantly
expand the volume and sensitivity of patient health data we process, including high-density patient data collected through Prolaio’s data collection software and clinical datasets. Our data processing activities subject us to numerous evolving
data privacy and security obligations, such as various laws, regulations, guidance, industry standards, external and internal privacy and security policies, contractual requirements, and other obligations relating to data privacy and security. The
legislative and regulatory framework for the processing of personal data worldwide is rapidly evolving and is likely to remain uncertain for the foreseeable future. This evolution may create uncertainty in our business, affect our ability to operate
in certain jurisdictions or to collect, store, transfer, use and share sensitive data, necessitate the acceptance of more onerous obligations in our contracts, result in liability or impose additional costs on us. The cost of compliance with these
laws, regulations and standards is high and is likely to increase in the future. Any failure or perceived failure by us to comply with federal, state or foreign laws or regulations, our internal policies and procedures or our contracts governing our
processing of sensitive data could result in negative publicity, government investigations and enforcement actions, claims by third parties and damage to our reputation, any of which could have a material adverse effect on our business, results of
operations, and financial condition.
In the United States, numerous federal, state and local laws and regulations, including federal health information privacy
laws, state information security and data breach notification laws, federal and state consumer protection laws (e.g., Section 5 of the Federal Trade Commission Act), and other similar laws (e.g., wiretapping laws) govern the processing of
health-related and other personal data. At a federal level, HIPAA imposes, among other things, certain standards relating to the privacy, security, transmission of and breach reporting related to individually protected identifiable health
information (“PHI”). We may obtain health information from third parties, such as research institutions with which we collaborate, that are subject to privacy and security requirements under HIPAA. Although we do not believe that we are
directly subject to HIPAA, other than potentially with respect to providing certain employee benefits, we could be subject to criminal penalties if we knowingly obtain or disclose PHI maintained by a HIPAA covered entity in a manner that is not
authorized or permitted by HIPAA. We currently use the Prolaio platform for our own clinical research purposes. To the extent we obtain PHI from covered entities under HIPAA, such as hospitals or clinical trial sites, for use with the Prolaio
platform or otherwise, we may be required to enter into data use agreements or business associate agreements and comply with applicable contractual and regulatory requirements for the use and disclosure of such information, including requirements
related to de-identification, limited data sets, appropriate administrative, physical and technical safeguards, and breach notification. If we were to expand Prolaio, Inc.’s operations to provide
services to external healthcare providers or other covered entities, we could become subject to more extensive HIPAA business associate obligations, including direct enforcement by the U.S. Department of Health and Human Services Office for Civil
Rights, which could impose civil monetary penalties as well as criminal penalties for violations of HIPAA.
We may also obtain patient health records through
platforms that participate in the Trusted Exchange Framework and Common Agreement (“TEFCA”), a nationwide health information exchange framework established under the 21st Century Cures Act and administered by ONC. TEFCA imposes privacy,
security, and individual rights requirements, including individual consent and data deletion rights, on entities that participate in TEFCA exchange activities. We obtain patient records through a third-party platform operating as an Individual
Access Services provider under TEFCA, pursuant to which individuals consent to retrieval of their health records for use in our clinical research. Depending on the scope of our participation in TEFCA exchange activities, we may be subject to
TEFCA’s contractual obligations, including obligations that may conflict with data retention requirements under the Common Rule and FDA clinical trial regulations. The application of
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TEFCA’s requirements to clinical research is an area of evolving legal interpretation for which regulatory guidance remains limited. Failure to comply with applicable TEFCA requirements, or
changes in how those requirements are interpreted or enforced, could require us to modify our data collection practices in ways that adversely affect our clinical operations or expose us to contractual liability or regulatory scrutiny.
At the state level, numerous U.S. states have enacted comprehensive privacy laws, such as the California Consumer Privacy Act (the “CCPA”) and several others
that impose certain obligations on covered businesses, including providing specific disclosures in privacy notices and affording individuals certain rights concerning their personal data. Similar laws and several others in several other states, as
well as at the federal and local levels, and we expect more states to pass similar laws in the future. While these comprehensive privacy laws that are in effect at the state level generally exempt certain data processed in the context of clinical
trials, the continued development of new privacy laws at the state level may further complicate compliance efforts, and increase legal risk and compliance costs for us and the third parties upon whom we rely. Further proposed privacy legislation, if
enacted, may add additional complexity, variation in requirements, restrictions and potential legal risk, require additional investment of resources in compliance programs, impact strategies and the availability of data and information that could be
of potential use to the growth and development of our business and could result in increased compliance costs and/or the necessity of making changes in our business practices and policies. The continued further development of privacy laws in
different states could make our compliance obligations more complex and costly and may increase the likelihood that we may be subject to enforcement actions or otherwise incur liability for noncompliance that could adversely impact our financial
condition. Additionally, we may be subject to laws governing the privacy of specific types of data, including, biometric information and, notably, consumer health data. For example, Washington’s My Health My Data Act broadly defines consumer
health data, creates a private right of action to allow individuals to sue for violations of the law, imposes stringent consent requirements and grants consumers certain rights with respect to their health data, including to request deletion of
their information. Connecticut and Nevada have also passed similar laws regulating consumer health data. These various data privacy and security laws may impact our business activities, including our identification of research subjects,
relationships with business partners and ultimately the marketing and distribution of our products. Such laws could have potentially conflicting requirements that would make compliance challenging. In the event that we are subject to or affected by
these U.S. state privacy and data protection laws, any liability from failure to comply with the requirements of these laws could adversely affect our financial condition.
Outside the United States, an increasing number of laws, regulations, and industry standards govern data privacy and security. For example, the European Union’s
General Data Protection Regulation (“EU GDPR”) and the United Kingdom’s General Data Protection Regulation and Data Protection Act 2018 (collectively, the “UK GDPR” and together with the EU GDPR, the “GDPR”)
impose strict requirements for processing personal data of individuals within the European Economic Area (“EEA”) and the United Kingdom (“UK”). These European regimes include strict requirements relating to processing of
sensitive data (such as health data), ensuring there is a legal basis or condition to justify the processing of personal data, obtaining consent of individuals in certain circumstances, disclosing how personal data is to be used, limiting retention
of information, implementing safeguards to protect the security and confidentiality of personal data, providing notification of data breaches, maintaining records of processing activities, documenting data protection impact assessments where there
is high-risk processing and taking certain measures when engaging third-party processors.
Under GDPR, companies may face temporary or definitive bans on data
processing and other corrective activities, fines of up to 20 million (£17.5 million GBP) or 4% of the annual global revenues of the noncompliant undertaking, whichever is
greater, private litigation related to processing of personal data brought by classes of data subjects or consumer protection organizations authorized at law to represent their interests; or regulatory investigations, reputational damage, orders to
cease/change our data processing activities, enforcement
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notices and/or assessment notices (for a compulsory audit). Non-compliance could also result in a material adverse effect on our business, financial
position and results of operations.
In addition, we may be unable to transfer personal data from Europe and other jurisdictions to the United States or other
countries or we may have to implement additional measures to enable such transfers due to data localization requirements or limitations on cross-border data flows. Among other requirements, the GDPR restricts the transfers of personal data subject
to the GDPR to third countries that have not been found to provide adequate protection to such personal data, including the United States, unless a derogation exists or we implement a valid GDPR transfer mechanism (for example, the European
Commission approved Standard Contractual Clauses and the UK International Data Transfer Agreement/Addendum and conduct transfer impact assessments to assess whether the recipient can ensure certain guarantees under the GDPR). However, the efficacy
and longevity of current transfer mechanisms remains uncertain. We expect the existing legal complexity and uncertainty regarding international personal data transfers to continue and international transfers to the United States and to other
jurisdictions more generally to continue to be subject to enhanced scrutiny by regulators. As the regulatory guidance and enforcement landscape in relation to data transfers continue to develop, we could suffer additional costs, complaints and/or
regulatory investigations or fines, and/or if we are otherwise unable to transfer personal data between and among countries and regions in which we operate, it could affect the manner in which we operate our business, the geographical location or
segregation of our relevant systems and operations, and could adversely affect our financial results.
The UK’s data protection regime is independent from but
aligned to the EU’s data protection regime. However following the UK’s departure from the European Union (“Brexit”), there will be increasing scope for divergence in application, interpretation and enforcement of the data
protection laws between these territories. For example, the UK Data (Use and Access) Act 2025 (the “UK Act”), now in force, further alters the similarities between the UK and EEA data protection regimes. In December 2025, the European
Commission adopted a decision determining that the UK continues to provide a level of data protection that is “essentially equivalent” to the EU standards and extended the validity of the UK adequacy decision for six years, through
December 2031. While this renewal reduces immediate adequacy concerns for transfers of personal data from the EEA to the UK, uncertainty remains regarding how UK data protection laws will evolve in the medium to longer term. This lack of clarity on
future UK laws and regulations and their interaction with those of the EU could add legal risk, uncertainty, complexity, and cost to our handling of European personal data and our privacy and security compliance programs, and any resulting
divergence in laws could increase our risk profile and may require us to implement different compliance measures for the UK and EEA. In addition, EEA Member States have adopted national laws to implement the GDPR that may partially deviate from the
GDPR. Further, the competent authorities in the EEA Member States interpret GDPR obligations slightly differently from country to country (particularly in relation to the processing of health data) and therefore we do not expect to operate in a
uniform legal landscape in the EEA. The European Commission has also proposed further reforms under the so-called “Digital Omnibus” package, which is intended to streamline and update aspects of the EU’s digital regulatory
framework, including certain data protection obligations. While the scope and final form of these proposals remain subject to legislative negotiation, if adopted they may further modify or supplement existing GDPR-related requirements, including by
further clarifying the scope of what constitutes “personal data” and the regulatory treatment of coded, key-coded or otherwise de-identified data. Any such changes could require us to reassess and adjust our European privacy compliance
framework, resulting in additional legal, operational and compliance costs.
Additionally, in 2025, the U.S. Department of Justice issued a rule entitled Preventing
Access to U.S. Sensitive Personal Data and Government-Related Data by Countries of Concern or Covered Persons, which places additional restrictions on certain data transactions involving countries of concern (e.g., China, Russia, Iran) and generally
prohibits data brokerage transactions involving certain sensitive personal data categories, including
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health data, genetic data, and biospecimens, to these countries of concern. The rule impacts certain business or management activities such as vendor engagements, licensing arrangements,
partnership engagements, sale or sharing of data, employment of certain individuals and investor agreements. Violations of the rule could lead to significant civil and criminal fines and penalties. We may in the future engage in data transactions
that could be subject to the rule. There is a risk that our interpretation of the rule’s applicability, scope and requirements could be incorrect, incomplete, or misapplied. The rule applies to certain data transactions even where data is
anonymized, key-coded, pseudonymized, de-identified or encrypted, which may impact our ability to enter into certain agreements.
In addition to data privacy and security laws, we are also bound by other contractual obligations related to data privacy and security, and our efforts to comply with
such obligations may not be successful. We may publish privacy policies and marketing materials, and other statements, such as compliance with certain certifications or self-regulatory principles, regarding data privacy and security. Regulators such
as the U.S. Federal Trade Commission are increasingly scrutinizing these statements, and if these policies, materials or statements are found to be deficient, lacking in transparency, deceptive, unfair, or misrepresentative of our practices, we may
be subject to investigation, enforcement actions by regulators, or other adverse consequences.
We may at times fail (or be perceived to have failed) in our efforts
to comply with our data privacy and security obligations. Moreover, despite our efforts, our personnel or third parties on whom we rely may fail (or be perceived to have failed) to comply with such obligations, which could negatively impact our
business operations. If we or the third parties on which we rely fail, or are perceived to have failed, to address or comply with applicable data privacy and security obligations, we could face significant consequences, including but not limited to:
government enforcement actions (e.g., investigations, fines, penalties, audits, inspections, and similar); litigation (including class-action claims) and mass arbitration demands; additional reporting requirements and/or oversight; bans on
processing personal data; and orders to destroy or not use personal data. In particular, plaintiffs have become increasingly more active in bringing privacy-related claims against companies, including class claims and mass arbitration demands. Some
of these claims allow for the recovery of statutory damages on a per violation basis, and, if viable, carry the potential for monumental statutory damages, depending on the volume of data and the number of violations. Any of these events could have
a material adverse effect on our reputation, business, or financial condition, including but not limited to: loss of customers; interruptions or stoppages in our business operations (including, as relevant, clinical trials); inability to process
personal data or to operate in certain jurisdictions; limited ability to develop or commercialize our products; expenditure of time and resources to defend any claim or inquiry; potentially significant penalties if we are found to be in violation of
our privacy obligations; adverse publicity; or substantial changes to our business model or operations.
Our information technology systems and infrastructure,
or those of our collaborators and service providers, or our data, may be subject to cyber-attacks, intrusions, breaches, compromises, disruptions or other cybersecurity incidents, which could result in additional costs, loss of revenue, significant
liabilities, harm to our brand, material disruption of our development programs and operations, or other adverse consequences.
In the ordinary course of our
business, we and the third parties upon which we rely, process sensitive data, and, as a result, we and the third parties upon which we rely face a variety of evolving threats that could cause cyber-attacks, intrusions, breaches, compromises,
disruptions or other cybersecurity incidents. Although we take steps to develop and maintain systems and controls designed to protect our sensitive data, systems and infrastructure, there can be no assurance that our internal technology systems and
infrastructure, or those of third parties upon which we rely, will be sufficient to protect against a cyber-attack, intrusion, breach, compromise, disruption or other cybersecurity incident such as an industrial espionage attack, ransomware, or
insider threat attack such as wrongful conduct by employees or vendors, which may compromise our system infrastructure or lead to the loss, destruction, alteration or dissemination of, or damage to, our sensitive data.
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Such threats are prevalent and continue to rise, are increasingly difficult to detect, and come from a variety of sources, including traditional computer “hackers,” threat actors,
“hacktivists,” organized criminal threat actors, personnel (such as through theft or misuse), sophisticated nation states, and nation-state-supported actors.
The risk of a cyber-attack, intrusion, breach, compromise, disruption or other cybersecurity incident has generally increased as the number, intensity and sophistication
of attempted attacks and intrusions from around the world have grown. Such risks come from a variety of evolving threats, including but not limited to, social engineering attacks (including through deep fakes, which may be increasingly more
difficult to identify as fake, and phishing attacks), malicious code (such as viruses and worms), misconfigurations, “bugs” or other vulnerabilities in software that is integrated into our technology systems and infrastructure, malware
(including as a result of advanced persistent threat intrusions), denial-of-service attacks, credential stuffing, credential harvesting, personnel misconduct or error,
ransomware attacks, supply-chain attacks, software bugs, server malfunctions, software or hardware failures, loss of data or other information technology assets, adware, attacks enhanced or facilitated by AI, telecommunications failures,
earthquakes, fires, floods, and other similar threats. Further, there can also be no assurance that our and our third-party service providers’, strategic partners’, contractors’, consultants’, CROs’ and
collaborators’ cybersecurity risk management program and processes, including policies, controls or procedures, will be fully implemented, complied with or effective in protecting our systems, networks and sensitive data.
Threat actors engage in and are expected to continue to engage in cyber-attacks, including without limitation nation-state actors for geopolitical reasons and in
conjunction with military conflicts and defense activities. During times of war and other major conflicts, we and the third parties upon which we rely, may be vulnerable to a heightened risk of cyber-attacks, including retaliatory cyber-attacks,
that could materially disrupt our systems and operations, supply chain, and ability to produce, sell and distribute our services. Additionally, severe ransomware attacks are becoming increasingly prevalent and can lead to significant interruptions
in our operations, ability to provide our products or services, loss of sensitive data and income, reputational harm, and diversion of funds. Extortion payments may alleviate the negative impact of a ransomware attack, but we may be unwilling or
unable to make such payments due to, for example, applicable laws or regulations prohibiting such payments.
We also face increased risks of a cyber-attack,
intrusion, breach, compromise, disruption or other cybersecurity incident due to our reliance on internet technology and the number of our employees who work on a hybrid basis at home, in the office, or other public spaces. This may create
additional opportunities for cybercriminals to exploit vulnerabilities. Additionally, business transactions (such as acquisitions or integrations) could expose us to additional cybersecurity risks and vulnerabilities, as our systems could be
negatively affected by vulnerabilities present in acquired or integrated entities’ systems and technologies that were not found during due diligence of such acquired or integrated entities.
In addition, our reliance on third-party service providers could introduce new cybersecurity risks and vulnerabilities, including supply-chain attacks. We rely on
third-party service providers and technologies to operate critical business systems to process sensitive data in a variety of contexts and our ability to monitor these third parties’ information security practices is limited. These third
parties may not have adequate information security measures in place and if our third-party service providers experience a cyber-attack, security breach, compromise, disruption or other cybersecurity incident, we could experience adverse
consequences. While we may be entitled to damages if our third-party service providers fail to satisfy their privacy or cybersecurity-related obligations to us, any award may be insufficient to cover our damages, or we may be unable to recover such
award.
We may be unable to detect vulnerabilities in our information technology systems and infrastructure on a timely basis or until after a cyber-attack,
intrusion, breach, compromise, disruption or other cybersecurity
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incident has occurred, and it may be difficult and/or costly to investigate, mitigate, contain, and remediate a cybersecurity incident. Further, we may experience delays in developing and
deploying remedial measures designed to adequately address any such identified vulnerabilities. Our efforts to do so may not be successful. Actions taken by us or the third parties with whom we work to detect, investigate, mitigate, contain, and
remediate a cybersecurity incident could result in outages, data losses, and disruptions of our business. Threat actors may also gain access to other networks and systems after a compromise of our networks and systems. For example, threat actors may
use an initial compromise of one part of our environment to gain access to other parts of our environment, or leverage a compromise of our networks or systems to gain access to the networks or systems of third parties with whom we work, such as
through phishing or supply chain attacks.
We have in the past experienced threats related to our data and systems, and we may in the future experience additional
threats, compromises, breaches or other cybersecurity incidents. If we, or a third party upon whom we rely, experience a cyber-attack, intrusion, breach, compromise, disruption or other cybersecurity incident, or are perceived to have experienced
one, we may experience adverse consequences, such as government enforcement actions (for example, investigations, fines, penalties, audits, and inspections); additional reporting requirements and/or oversight; restrictions on processing sensitive
information (including personal data); litigation (including individual and group claims); significant incident response, system restoration or remediation costs; indemnification obligations; negative publicity; reputational harm; monetary fund
diversions; interruptions in our operations (including availability of data); financial loss; and other potentially significant harms. Further, applicable data privacy and cybersecurity obligations may require us to notify individuals, regulators,
or other relevant stakeholders of a cyber-attack, intrusion, breach, compromise, disruption, or other cybersecurity incident. Such disclosures are costly, and the disclosure or the failure to comply with such requirements could lead to adverse
consequences. In addition, cyber-attacks, intrusions, breaches, compromises, disruptions or other cybersecurity incidents may cause stakeholders (including investors and potential customers) to stop supporting our business, deter new customers from
using our products, and negatively impact our ability to grow and operate our business.
Our contracts may not contain limitations of liability, and even where they
do, there can be no assurance that limitations of liability in our contracts are sufficient to protect us from liabilities, damages, or claims related to our data privacy and cybersecurity obligations. Further, our existing general liability and
cyber liability insurance policies may not cover, or may cover only a portion of, any potential claims related to cybersecurity breaches to which we are exposed or may not be adequate to indemnify us for all or any portion of liabilities that may be
imposed. We also cannot be certain that our existing insurance coverage will continue to be available on acceptable terms or in amounts sufficient to cover the potentially significant losses that may result from a cybersecurity incident or breach or
that the insurer will not deny coverage of any future claim. Accordingly, if our cybersecurity measures, and those of our service providers, fail to protect against unauthorized access, attacks (which may include sophisticated cyberattacks) and the
mishandling of data by our employees and third-party service providers, then our reputation, business, results of operations and financial condition could be adversely affected.
The use of new and evolving technologies, such as AI and machine learning (“ML”), in our operations, and the operations of third parties upon which we
rely, may result in spending additional resources and present new risks and challenges that can impact our business including by posing cybersecurity and other risks to our sensitive data, and as a result we may be exposed to reputational harm,
other adverse consequences, and liability.
We use and integrate AI/ML systems in our business, primarily in our Prolaio platform. The use of new and
evolving technologies, such as AI/ML, in our operations, and the operations of third parties upon which we rely presents new risks and challenges that could negatively impact our business. The use of new and evolving technologies, such as AI/ML, in
our operations, and the operations of third parties upon which we rely, presents
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new risks and challenges that could negatively impact our business, including cybersecurity, data privacy, IT, intellectual property, regulatory, legal, operational, competitive, reputational,
and other risks and challenges. Specifically, risks related to bias, AI hallucinations, discrimination, harmful content, misinformation, fraud, scams, targeted attacks such as model poisoning or data poisoning, surveillance, data leakage, loss of
consensus reality, inequality, environmental harms, and other harms may flow from our development, use, or deployment of AI technologies.
We expect that increased
investment will be required in the future to continuously improve our AI/ML systems. As with many technological innovations, there are significant risks involved in developing, maintaining and deploying these technologies and there can be no
assurance that the usage of our investments in such technologies will always enhance our products or services or be beneficial to our business, including our efficiency or profitability.
The use of certain AI/ML technology can give rise to intellectual property risks, including by disclosing or otherwise compromising our confidential or proprietary
intellectual property and intellectual property infringement, or by undermining our ability to assert or defend ownership rights in intellectual property created with the assistance of AI/ML tools. For example, we may experience difficulties in
enforcing the intellectual property rights in output generated by AI/ML technologies. The United States Copyright Office has previously denied copyright protection for content generated by AI/ML technologies, and the United States Patent and
Trademark Office has similarly stated that an AI/ML tool cannot be an “inventor” of a patent, rendering it impossible to obtain patent protection for inventions created solely by AI/ML technologies. The Supreme Court of the United
Kingdom has reached a similar conclusion, stating that AI/ML systems cannot be named as an “inventor” for UK patent law purposes. Additionally, several jurisdictions around the globe, including in Europe and the U.S., have proposed,
enacted, or are considering, laws governing the development and use of AI/ML, such as the EU’s AI Act, a significant part of which is scheduled to come into effect in August 2026. As currently enacted, the EU AI Act imposes significant
obligations on providers and deployers of high-risk AI systems, and encourages providers and deployers of AI systems to account for EU ethical principles in their development and use of these systems. If we use AI/ML systems that are governed by the
EU AI Act, it may necessitate ensuring higher standards of data quality, transparency, and human oversight, as well as adhering to specific and potentially burdensome and costly ethical, accountability, and administrative requirements. We expect
other jurisdictions will adopt similar laws.
In the U.S., the regulatory framework for AI/ML technologies faces significant uncertainty. At the federal level,
Congress has yet to enact meaningful AI legislation. In the absence of federal AI legislation, states have filled the void by enacting laws regulating different aspects of AI/ML technologies. For example, California has enacted laws and regulations
related to AI/ML safety protocols, reporting and transparency, among other AI-related topics. In addition, Colorado’s Artificial Intelligence Act will require developers and deployers of
“high-risk” AI systems to implement certain safeguards against algorithmic discrimination (among other requirements). Numerous other states have enacted, passed, or are considering AI-focused
legislation, creating a patchwork of regulations and a complex compliance challenge. The Trump Administration has endorsed a federal moratorium on the enforcement of state AI laws, including through a December 11, 2025, executive order on
“Ensuring a National Policy Framework for Artificial Intelligence.” So far, these efforts have not been successful at curtailing state action on AI regulation, contributing to a complicated legislative patchwork, which may be litigated
in state and federal courts. Any failure or perceived failure by us to comply with existing or newly enacted laws, regulations and other requirements relating to AI/ML technologies could result in legal claims or proceedings (including class
actions), regulatory investigations or enforcement actions.
Additionally, certain privacy laws extend rights to consumers (such as the right to delete certain
personal data) and regulate automated decision making, which may be incompatible with our use of AI/ML. These obligations may make it harder for us to conduct our business using AI/ML, lead to regulatory fines or penalties, require us
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to change our business practices, retrain our AI/ML, or prevent or limit our use of AI/ML. For example, the Federal Trade Commission has required other companies to turn over (or disgorge)
valuable insights or trainings generated through the use of AI/ML where they allege the company has violated certain privacy and consumer protection laws. If we cannot use AI/ML or that use is restricted, our business may be less efficient, or we
may be at a competitive disadvantage.
The rapid evolution of AI/ML will require the application of significant resources to design, develop, test and maintain our
products and services to help ensure that AI/ML is implemented in accordance with applicable law and regulation and in a socially responsible manner and to minimize any real or perceived unintended harmful impacts. Our vendors may in turn
incorporate AI/ML tools into their own offerings, and the providers of these AI/ML tools may not meet existing or rapidly evolving regulatory or industry standards, including with respect to data privacy and cybersecurity. Further, bad actors around
the world use increasingly sophisticated methods, including the use of AI/ML, to expand potential attack surfaces and otherwise engage in illegal activities involving the theft and misuse of sensitive data. Any of these effects could damage our
reputation, result in the loss of valuable property and information, cause us to breach applicable laws and regulations, and adversely impact our business.
Risks related to the discovery and development of our current or future product candidates
The regulatory approval processes of the FDA, EMA, and other comparable regulatory authorities are lengthy, time-consuming and inherently unpredictable, and if we
are ultimately unable to obtain regulatory approval for our product candidates, our business will be substantially harmed.
We are not permitted to
commercialize, market, promote or sell any product candidate in the United States without obtaining regulatory approval from the FDA. Foreign regulatory authorities, such as the EMA and national competent authorities in EU Member States, impose
similar requirements. The time required to obtain approval by the FDA, EMA, or other comparable regulatory authorities is inherently unpredictable, but typically takes many years following the commencement of clinical trials and depends upon
numerous factors, including substantial discretion of the regulatory authorities. In addition, approval policies, regulations, or the type and amount of clinical data necessary to gain approval may change during the course of a product
candidate’s clinical development and may vary among jurisdictions. For instance, jurisdictions outside of the United States, such as the European Union or Japan, may have different requirements for regulatory approval, which may require us to
conduct additional clinical, nonclinical or chemistry, manufacturing and control studies. To date, we have not submitted an NDA to the FDA or similar drug approval submissions to comparable foreign regulatory authorities for any product candidate.
We must complete additional preclinical studies and clinical trials to demonstrate the safety and efficacy of our product candidates in humans before we will be able to obtain these approvals.
Before obtaining approval from regulatory authorities for the commercialization of any of our product candidates, we must conduct extensive clinical trials to
demonstrate the safety and efficacy of the product candidate in humans. Clinical testing is expensive, difficult to design and implement, can take many years to complete and is inherently uncertain as to outcome. We cannot guarantee that any
clinical trials will be conducted as planned or completed on schedule, if at all. The clinical development of our initial and potential additional product candidates is susceptible to the risk of failure inherent at any stage of development,
including failure to demonstrate efficacy in a clinical trial or across a broad population of patients, the occurrence of AEs that are severe or medically or commercially unacceptable, failure to comply with protocols or applicable regulatory
requirements and determination by the FDA, EMA, or other comparable regulatory authorities that a product candidate may not continue development or is not approvable. It is possible that
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even if any of our product candidates have a beneficial effect, that effect will not be detected during clinical evaluation as a result of one or more of a variety of factors, including the size,
duration, design, measurements, conduct or analysis of our clinical trials. Conversely, as a result of the same factors, our clinical trials may indicate an apparent positive effect of such product candidate that is greater than the actual positive
effect, if any. Similarly, in our clinical trials we may fail to detect toxicity of, or intolerability caused by, such product candidate, or mistakenly believe that our product candidates are toxic or not well-tolerated when that is not in fact the
case. Serious AEs or other AEs, as well as tolerability issues, could hinder or prevent market acceptance of the product candidate at issue.
Our current and future
product candidates could fail to receive regulatory approval for many reasons, including the following:
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the FDA, EMA, or other comparable regulatory authorities may disagree as to the design or implementation of our clinical
trials;
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we may be unable to demonstrate to the satisfaction of the FDA, EMA, or other comparable regulatory authorities that a
product candidate is safe and effective for its proposed indication;
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the results of clinical trials may not meet the level of statistical significance required by the FDA, EMA, or other
comparable regulatory authorities for approval;
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we may be unable to demonstrate that a product candidate’s clinical and other benefits outweigh its safety risks;
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the FDA, EMA, or other comparable regulatory authorities may disagree with our interpretation of data from clinical trials
or preclinical studies;
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the data collected from clinical trials of our product candidates may not be sufficient to support the submission of an NDA
to the FDA or other submission or to obtain regulatory approval in the United States, the European Union or elsewhere;
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the FDA, EMA, or other comparable regulatory authorities may find deficiencies with or fail to approve the manufacturing
processes or facilities of third-party manufacturers with which we contract for clinical and commercial supplies; and
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the approval policies or regulations of the FDA, EMA, or other comparable regulatory authorities may significantly change
in a manner rendering our clinical data insufficient for approval.
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This lengthy approval process as well as the unpredictability of clinical trial
results may result in our failing to obtain regulatory approval to market any product candidate we develop, which would substantially harm our business, financial condition, results of operations and prospects. The FDA, EMA, and other comparable
regulatory authorities have substantial discretion in the approval process and determining when or whether regulatory approval will be granted for any product candidate that we develop. Even if we believe the data collected from future clinical
trials of our product candidates are promising, such data may not be sufficient to support approval by the FDA, EMA, or other comparable regulatory authorities. Furthermore, the U.S. Supreme Court’s July 2024 decision to overturn prior
established case law giving deference to regulatory agencies’ interpretations of ambiguous statutory language has introduced uncertainty regarding the extent to which FDA’s regulations, policies and decisions may become subject to
increasing legal challenges, delays, and/or changes.
In addition, even if we were to obtain approval, regulatory authorities may approve any of our product
candidates for fewer or more limited indications than we request, may not approve the price we intend to charge for our products, may grant approval contingent on the performance of costly post-marketing clinical
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trials or may approve a product candidate with a label that does not include the labeling claims necessary or desirable for the successful commercialization of that product candidate. Any of the
foregoing scenarios could materially harm the commercial prospects for our product candidates.
In addition, FDA and foreign regulatory authorities may change their
approval policies and new regulations may be enacted. For instance, the EU pharmaceutical legislation is currently undergoing a complete review process, in the context of the Pharmaceutical Strategy for Europe initiative, launched by the European
Commission in November 2020. The European Commission’s proposal for revision of several legislative instruments related to medicinal products (potentially reducing the duration of regulatory data protection, revising the eligibility for
expedited pathways, etc.) was published on April 26, 2023. In April 2024, the European Parliament adopted its position on the legislative proposals and, in June 2025, the Council of the European Union adopted its position. A common position on
the text was agreed upon on December 11, 2025, in the context of subsequent inter-institutional trilogue negotiations. The proposed revisions remain to be adopted into EU law, and are not expected to become applicable before 2028. The revisions
may, however, have a significant impact on the pharmaceutical industry and our business in the long term.
The FDA, EMA or comparable regulatory authorities
may disagree with our regulatory plan for our product candidates.
The general approach for FDA approval of a new drug is dispositive data from two or more
adequate and well-controlled clinical trials of the product candidate in the relevant patient population. Adequate and well-controlled clinical trials typically involve a large number of patients, have significant costs and take years to complete.
The FDA, EMA or other comparable regulatory authorities may disagree with us about whether a clinical trial is adequate and well-controlled or may request that we conduct additional clinical trials prior to regulatory approval. In addition, there is
no assurance that the doses, endpoints and trial designs that we intend to use for our planned clinical trials, including those that we have developed based on feedback from regulatory agencies or those that have been used for the approval of
similar drugs, will be acceptable for future approvals. For instance, we may seek FDA regulatory flexibility and pursue marketing approval based on data from only one adequate and well-controlled clinical investigation. However, the FDA may not
agree with our proposed development plans, and our clinical trial results may not support approval of our product candidates for our target indications. In addition, our product candidates could fail to receive regulatory approval, or regulatory
approval could be delayed, for many reasons, including the following:
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the FDA, EMA, or comparable regulatory authorities may not file or accept our NDA or marketing application for substantive
review;
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the FDA, EMA, or comparable regulatory authorities may disagree with the dosing regimen, design or implementation of our
clinical trials;
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the FDA, EMA, or comparable regulatory authorities may determine there is not substantial evidence of effectiveness to
support approval;
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we may be unable to demonstrate to the satisfaction of the FDA, EMA, or comparable regulatory authorities that our product
candidates are safe and effective for any of their proposed indications;
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the results of our clinical trials may not meet the level of statistical significance required by the FDA, EMA, or
comparable regulatory authorities for approval;
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we may be unable to demonstrate that our product candidates’ clinical and other benefits outweigh their safety risks;
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the FDA, EMA, or comparable regulatory authorities may disagree with our interpretation of data from preclinical studies or
clinical trials;
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the data collected from clinical trials of our product candidates may not be sufficient to the satisfaction of the FDA,
EMA, or comparable regulatory authorities to support the submission of an NDA or other comparable submission in foreign jurisdictions or to obtain regulatory approval in the United States or elsewhere;
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the FDA, EMA, or comparable regulatory authorities may find deficiencies with or fail to approve the manufacturing
processes or facilities of third-party manufacturers with which we contract for clinical and commercial supplies; and
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the approval policies or regulations of the FDA, EMA, or comparable regulatory authorities may significantly change in a
manner rendering our clinical data insufficient for approval.
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We are dependent on third parties having accurately generated, collected,
interpreted and reported data from certain preclinical studies and clinical trials that were previously conducted for our product candidates.
All of our
lead product candidates were initially developed by third parties. For example, Danicamtiv was initially developed by MyoKardia and further developed by BMS Co., Ataciguat was initially developed by Sanofi and Mayo and Tonlamarsen was developed by
Ionis. We in-licensed each of these product candidates pursuant to license agreements with BMS Co., Sanofi and Mayo, and Ionis, respectively. We entered into these licenses on the basis of our interpretation
of the medical and scientific meaningfulness of each product candidate’s initial data. Therefore, we are dependent on third-parties such as MyoKardia, BMS Co., Sanofi, Mayo and Ionis having designed certain preclinical studies and clinical
trials and conducted their research and development in accordance with the applicable protocols, legal and regulatory requirements, and scientific standards; having accurately reported the results of all preclinical studies conducted with respect to
such product candidates; and having correctly collected and interpreted the data from these studies and trials. These risks also apply to any additional product candidates that we may acquire or in-license in
the future. If these activities were not compliant, accurate or correct, the clinical development, regulatory approval or commercialization of our product candidates will be adversely affected and the earlier-reported results may not support data
that we generate in our own preclinical or clinical work with those product candidates.
Our use of the Prolaio platform to enhance clinical trial design and
execution is a novel approach that may not result in the anticipated efficiencies or regulatory acceptance, which exposes us to unforeseen risks and makes it difficult for us to predict the time and cost of product development.
A key element of our strategy is utilizing our Prolaio platform, which leverages AI-enabled tools to optimize the development of
our product candidates in clinical development, including by enhancing the design and execution of our clinical trials through improved patient identification and enrollment, and continuous real world data collection. While we believe the Prolaio
platform has the potential to expand patient access and accelerate patient recruitment and trial execution for our own trials and when sold to third-parties for use in third-party clinical trials, the Prolaio platform is a novel approach to trial
design and execution. As a result, we are exposed to a number of unforeseen risks related to our Prolaio platform, and these risks could impact each of our product candidates. For example, digital clinical endpoints collected through our Prolaio
platform may not be accepted by the FDA as valid primary or secondary endpoints, which could require additional validation work, modification of trial design or the collection of additional clinical endpoint data, potentially delaying development
timelines. The regulatory framework for digital health technologies and digitally-obtained endpoints continues to evolve. Because it is a novel approach, to date, we have not used Prolaio to support regulatory decision-making, and the use of Prolaio
in our clinical trials to support regulatory decision-making for our therapeutic candidates has not yet been validated by the FDA. While our clinical studies of Danicamtiv and Ataciguat are exploring the use of Prolaio to capture eVO2peak (our novel
estimate of pVO 2 , which is a clinically accepted measure of a patient’s functional capacity derived from Cardiopulmonary Exercise Testing (“CPET”)), our primary endpoint
evaluates pVO 2 to support regulatory decision-making and we do not intend to
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seek approval on the basis of the eVO2peak measurements collected by Prolaio. In the future, we will need to validate Prolaio biomarkers with the FDA to be used as endpoints for a given disease.
Even if validated by the FDA, we may not realize Prolaio’s potential to support smaller, faster, and more capital efficient clinical trials, and it may not meet our expectations in speeding the development of our programs and increasing the
probability of success.
Although our research and development efforts to date have resulted in a development portfolio of programs and product candidates, we may
not be able to discover or identify additional candidates or clinical research that could appropriately utilize our Prolaio platform. Even if we are successful in continuing to build and expand our development portfolio, the potential product
candidates that we identify may not be successful in clinical development. If we do not successfully deploy the Prolaio platform to develop and commercialize additional product candidates, we may not realize the anticipated benefits of developing
and utilizing our Prolaio platform, which likely would result in significant harm to our financial position and adversely affect our stock price.
If our
clinical trials fail to replicate positive results from earlier preclinical studies or clinical trials conducted by us or third parties, we may be unable to successfully develop, obtain regulatory approval for or commercialize our product
candidates.
The results observed from preclinical studies or early-stage clinical trials of our product candidates may not necessarily be predictive of the
results of later-stage clinical trials that we conduct. Similarly, positive results from such preclinical studies or early-stage clinical trials may not be replicated in our subsequent preclinical studies or clinical trials. For instance, results
seen in our Phase 2 trial of Danicamtiv for DCM may not translate to similar results in our ongoing KINSHIP-DCM Phase 2b/3 clinical trial. Furthermore, our product candidates may not be able to demonstrate
similar activity or adverse event profiles as other product candidates that we believe may have similar profiles.
In addition, in our ongoing and planned future
clinical trials, we may utilize clinical trial designs or dosing regimens that have not been routinely tested in prior clinical trials similar to ours. For instance, in our KATALYST-AV trial for Ataciguat, we
are exploring novel endpoints, including change in valve area calcium and peak VO 2 , in patients with aortic stenosis. In our KINSHIP-DCM study for
Danicamtiv, we are deploying an adaptive trial design where the effects observed in the Phase 2b portion of the study may impact the statistical analysis and sample size of the Phase 3 portion of the study. In our
KARDINAL-ASH study for Tonlamarsen, we plan to leverage Prolaio data collection during the post-discharge period to characterize blood pressure control, blood pressure excursions and cardiovascular parameters.
There can be no assurance that any of our clinical trials will ultimately be successful or support further clinical development of any of our product candidates.
There is a high failure rate for drugs proceeding through clinical trials. Many companies in the pharmaceutical and biotechnology industries have suffered significant setbacks in late-stage clinical trials after achieving positive results in
early-stage development, and we cannot be certain that we will not face similar setbacks. These setbacks have been caused by, among other things, preclinical findings made while clinical trials were underway or safety or efficacy observations made
in preclinical studies and clinical trials, including previously unreported adverse effects or AEs.
Additionally, we may utilize an “open-label”
clinical trial design for certain of our clinical trials. For example, our Phase 2 trial for Danicamtiv was an open-label clinical trial. An “open-label” clinical trial is one where both the patient and investigator know whether the
patient is receiving the investigational product candidate or either an existing approved drug or placebo. Most open-label clinical trials test only the investigational product candidate and sometimes may do so at different dose levels. Open-label
clinical trials are subject to various limitations that may exaggerate any therapeutic effect as patients in open-label clinical trials are aware when
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they are receiving treatment. A common concern with open-label clinical trials is an increased susceptibility to bias, including “patient bias” where patients perceive their symptoms
to have improved merely due to their awareness of receiving an experimental treatment. In addition, open-label clinical trials may be subject to an “investigator bias” where those assessing and reviewing the physiological outcomes of the
clinical trials are aware of which patients have received treatment and may interpret the information of the treated group more favorably given this knowledge. The results from an open-label trial may not be predictive of future clinical trial
results of a product candidate when studied in a controlled environment with a placebo or active control. Accordingly, data from our Phase 2 trial for Danicamtiv may not be predictive of data from our planned clinical trials for Danicamtiv.
Moreover, preclinical and clinical data are often susceptible to varying interpretations and analyses and many companies that believed their product candidates performed
satisfactorily in preclinical studies and clinical trials nonetheless failed to obtain FDA, EMA or comparable foreign regulatory authority approval.
We intend
to conduct certain clinical trials for our product candidates outside of the U.S. However, the FDA and comparable foreign regulatory authorities may not accept data from such trials, in which case our development plans will be delayed, which could
materially harm our business.
We may conduct certain clinical trials for our product candidates outside of the U.S. Although the FDA may accept data from
clinical trials conducted outside the U.S., acceptance of this data is subject to certain conditions imposed by the FDA or may not be accepted at all. Where data from foreign clinical trials are intended to serve as the basis for marketing approval
in the U.S., the FDA will not approve the application on the basis of foreign data alone unless those data are applicable to the U.S. population and U.S. medical practice; the studies were performed by clinical investigators of recognized competence
and pursuant to GCP regulations; and the data are considered valid without the need for an on-site inspection by the FDA or, if the FDA considers such an inspection to be necessary, the FDA is able to validate
the data through an on-site inspection or other appropriate means. In addition, even where the foreign study data are not intended to serve as the sole basis for approval, if the study was not otherwise
subject to an IND, the FDA will not accept the data as support for an application for regulatory approval unless the study is well-designed and well-conducted in accordance with GCP requirements and the FDA is able to validate the data from the
study through an onsite inspection if deemed necessary. Many foreign regulatory authorities have similar approval requirements. In addition, such foreign trials would be subject to the applicable local laws of the foreign jurisdictions where the
trials are conducted.
For studies that are conducted only at sites outside of the U.S. and not subject to an IND, the FDA generally does not provide advance comment
on the clinical protocols for the studies, and therefore there is an additional potential risk that the FDA could determine that the study design or protocol for a non-U.S. clinical trial was inadequate, which
could require us to conduct additional clinical trials. Conducting clinical trials outside the U.S. also exposes us to additional risks, including risks associated with:
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additional foreign regulatory requirements;
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foreign exchange fluctuations;
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compliance with foreign manufacturing, customs, shipment and storage requirements;
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cultural differences in medical practice and clinical research; and
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diminished protection of intellectual property in some countries.
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In addition, clinical trials conducted in one country may not be accepted by regulatory authorities in other countries, and regulatory approval in one country does not
guarantee regulatory approval in any other country. We currently have clinical trial sites for Danicamtiv, Ataciguat, and Tonlamarsen outside the United States and may in the future conduct further clinical trials with one or more trial sites that
are located outside the United States. Although the FDA may accept data from clinical trials conducted outside the United States, acceptance of
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this data is subject to conditions imposed by the FDA, and there can be no assurance that the FDA will accept data from trials conducted outside of the United States. If the FDA does not accept
the data from any trial that we conduct outside the United States, it would likely result in the need for additional trials, which would be costly and time-consuming and could delay or permanently halt our development of the applicable product
candidates.
We may incur unexpected costs or experience delays in completing, or ultimately be unable to complete, the development and commercialization of
our product candidates.
To obtain the requisite regulatory approvals to commercialize any of our product candidates, we must demonstrate through extensive
preclinical studies and clinical trials that our product candidates are safe and effective in humans. We may experience delays in completing our clinical trials or preclinical studies and initiating or completing additional clinical trials or
preclinical studies, including as a result of regulators not allowing or delay in allowing clinical trials to proceed under an IND or similar foreign authorization, or not approving or delaying approval for any clinical trial grant or similar
approval we need to initiate a clinical trial. We may also experience numerous unforeseen events during our clinical trials that could delay or prevent our ability to receive marketing approval or commercialize the product candidates we develop,
including:
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regulators, institutional review boards (“IRBs”) or other reviewing bodies may not authorize us or our
investigators to commence a clinical trial, or to conduct or continue a clinical trial at a prospective or specific trial site;
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we may not reach agreement on acceptable terms with prospective CROs and clinical trial sites, the terms of which can be
subject to extensive negotiation and may vary significantly among different CROs and trial sites;
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we may experience challenges or delays in recruiting principal investigators or study sites to lead our clinical trials;
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the number of subjects or patients required for clinical trials of our product candidates may be larger than we anticipate,
enrollment in these clinical trials may be insufficient or slower than we anticipate, and the number of clinical trials being conducted at any given time may be high and result in fewer available patients for any given clinical trial, or patients
may drop out of these clinical trials at a higher rate than we anticipate;
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our third-party contractors, including those manufacturing our product candidates or conducting clinical trials on our
behalf, may fail to comply with regulatory requirements or meet their contractual obligations to us in a timely manner, or at all;
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we may have to amend clinical trial protocols submitted to regulatory authorities or conduct additional studies to reflect
changes in regulatory requirements or guidance, which may be required to resubmit to an IRB and regulatory authorities for re-examination;
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regulators or other reviewing bodies may find deficiencies with, fail to approve or subsequently find fault with the
manufacturing processes or facilities of third-party manufacturers with which we enter into agreements for clinical and commercial supplies, or the supply or quality of any product candidate or other materials necessary to conduct clinical trials of
our product candidates may be insufficient, inadequate or not available at an acceptable cost, or we may experience interruptions in supply; and
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the potential for approval policies or regulations of the FDA, EMA, or other comparable regulatory authorities to
significantly change in a manner rendering our clinical data insufficient for approval.
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Clinical trials must be conducted in accordance with the
FDA, EMA, and other applicable regulatory authorities’ legal requirements, regulations and guidelines, and remain subject to oversight by these governmental agencies and ethics committees or IRBs at the medical institutions where such clinical
trials are conducted. Regulators or IRBs of the institutions in which clinical trials are being conducted may suspend, limit or terminate a clinical trial, or data
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monitoring committees may recommend that we suspend or terminate a clinical trial, due to a number of factors, including failure to conduct the clinical trial in accordance with regulatory
requirements or our clinical protocols, inspection of the clinical trial operations or trial site by the FDA, EMA, or other comparable regulatory authorities resulting in the imposition of a clinical hold, safety issues or adverse side effects,
failure to demonstrate a benefit from using a drug, changes in governmental regulations or administrative actions or lack of adequate funding to continue the clinical trial. In addition, changes in regulatory requirements and policies may occur, and
we may need to amend clinical trial protocols to comply with these changes. Amendments may require us to resubmit our clinical trial protocols to regulators or to IRBs for reexamination, which may impact the costs, timing or successful completion of
a clinical trial. Negative or inconclusive results from our clinical trials or preclinical studies could mandate repeated or additional clinical trials and, to the extent we choose to conduct clinical trials in other indications, could result in
changes to or delays in clinical trials of our product candidates in such other indications. We do not know whether any clinical trials that we conduct will demonstrate adequate efficacy and safety to result in regulatory approval to market our
product candidates for the indications that we are pursuing. If later-stage clinical trials do not produce favorable results, our ability to obtain regulatory approval for our product candidates will be adversely impacted.
Further, conducting clinical trials in foreign countries, as we may do for our product candidates, presents additional risks that may delay completion of our clinical
trials. These risks include the failure of enrolled subjects in foreign countries to adhere to clinical protocols as a result of differences in healthcare services or cultural customs, managing additional administrative burdens associated with
foreign regulatory schemes, and political and economic risks, including war, relevant to such foreign countries.
Our failure to successfully initiate and complete
clinical trials and to demonstrate the efficacy and safety necessary to obtain regulatory approval to market our product candidates would significantly harm our business. Our product candidate development costs will also increase if we experience
delays in testing or regulatory approvals and we may be required to obtain additional funds to complete clinical trials. We cannot assure you that our clinical trials will begin as planned or be completed on schedule, if at all, or that we will not
need to restructure or otherwise modify our trials after they have begun. In addition, many of the factors that cause, or lead to, the termination, suspension of, or a delay in the commencement or completion of, clinical trials may also ultimately
lead to the denial of regulatory approval of a product candidate. Significant clinical trial delays also could shorten any periods during which we may have the exclusive right to commercialize our product candidates or allow our competitors to bring
products to market before we do and impair our ability to successfully commercialize our product candidates, which may harm our business, financial condition and results of operations. In addition, many of the factors that cause, or lead to, delays
of clinical trials may ultimately lead to the denial of regulatory approval of our product candidates.
Our product candidates may be associated with AEs or
other undesirable properties or safety risks, which could delay or prevent their regulatory approval, cause us to suspend or discontinue clinical trials or abandon a product candidate, limit the commercial profile of an approved la
### EX-3.1 - EX-3.1
EX-3.1
2
d107928dex31.htm
EX-3.1
EX-3.1
Exhibit 3.1
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
KARDIGAN, INC.
(Pursuant to Sections 242 and 245 of the
General Corporation Law of the State of Delaware)
Kardigan, Inc., a corporation organized and existing under and by virtue of the provisions of the General Corporation Law of the State of
Delaware (the “ General Corporation Law ”),
DOES HEREBY CERTIFY:
1. That the name of this corporation is Kardigan, Inc., and that this corporation was originally incorporated pursuant to the General
Corporation Law on August 18, 2023 under the name EnCarda, Inc.
2. That the Board of Directors of this corporation (the
“ Board of Directors ”) duly adopted resolutions proposing to amend and restate the amended and restated Certificate of Incorporation, as amended, of this corporation, declaring said amendment and restatement to be advisable and in
the best interests of this corporation and its stockholders, and authorizing the appropriate officers of this corporation to solicit the consent of the stockholders therefor, which resolution setting forth the proposed amendment and restatement is
as follows:
RESOLVED , that the Amended and Restated Certificate of Incorporation of this corporation be amended and restated in
its entirety to read as follows:
FIRST : The name of this corporation is Kardigan, Inc. (the
“ Corporation ”).
SECOND : The address of the registered office of the Corporation in the State of Delaware
is 1209 Orange Street, in the City of Wilmington, County of New Castle, 19801. The name of its registered agent at such address is THE CORPORATION TRUST COMPANY.
THIRD : The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law.
FOURTH : The total number of shares of all classes of stock which
the Corporation shall have the authority to issue is 77,991,937. The Corporation has two classes of stock, referred to as Common Stock and Preferred Stock. There are 51,000,000 shares of authorized Common Stock, $0.00001 par value per share
(“ Common Stock ”) and 26,991,937 shares of authorized Preferred Stock, $0.00001 par value per share (“ Preferred Stock ”), 17,256,508 of which are hereby designated as “ Series A Preferred Stock ”,
5,954,660 of which are hereby designated as “ Series B Preferred Stock ” and 3,780,769 of which are hereby designated as “ Series B-1 Preferred Stock ”).
The following is a statement of the designations and the powers, preferences and special rights, and the qualifications, limitations or
restrictions thereof in respect of each class of capital stock of the Corporation.
A. COMMON STOCK
1
1. General . The voting, dividend and liquidation rights of the holders of the Common
Stock are subject to and qualified by the powers, preferences and special rights of the holders of the Preferred Stock set forth herein.
2. Voting . Except as otherwise provided herein or by applicable law, the holders of the Common Stock shall be entitled to one
(1) vote for each share of Common Stock held as of the applicable record date for each meeting of stockholders (and written actions in lieu of meetings); provided , however , that, except as otherwise required by law, holders of
Common Stock, as such, shall not be entitled to vote on any amendment to this Second Amended and Restated Certificate of Incorporation (this “ Certificate of Incorporation ”) that relates solely to the terms of one (1) or more
outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together with the holders of one (1) or more other such series, to vote thereon pursuant to this Certificate of Incorporation or
pursuant to the General Corporation Law. There shall be no cumulative voting. The number of authorized shares of Common Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by (in addition to any vote of
the holders of one or more series of Preferred Stock that may be required by the terms of this Certificate of Incorporation) the affirmative vote of the holders of shares of capital stock of the Corporation representing a majority of the votes
represented by all outstanding shares of capital stock of the Corporation entitled to vote, irrespective of the provisions of Section 242(b)(2) of the General Corporation Law.
B. PREFERRED STOCK
The shares
of the Preferred Stock shall have the powers, preferences and special rights set forth in this Part B of this Article Fourth . Unless otherwise indicated, references to “sections” or “Sections” in this Part B of this
Article Fourth refer to sections of Part B of this Article Fourth . References to “Preferred Stock” mean, collectively, the Series A Preferred Stock, the Series B Preferred Stock and the Series
B-1 Preferred Stock. References to the “Voting Preferred Stock” mean, collectively, the Series A Preferred Stock and the Series B Preferred Stock.
1. Dividends .
The
Corporation shall not declare, pay or set aside any dividends on shares of any other class or series of capital stock of the Corporation (other than dividends on shares of Common Stock payable in shares of Common Stock) unless (in addition to the
obtaining of any consents required elsewhere in this Certificate of Incorporation) the holders of the Preferred Stock then outstanding shall first receive, or simultaneously receive, a dividend on each outstanding share of Preferred Stock in an
amount at least equal to (i) in the case of a dividend on Common Stock, the product of (A) the dividend declared, paid or set aside on such Common Stock and (B) the number of shares of Common Stock issuable upon conversion of a share
of such Preferred Stock; (ii) in the case of a dividend on a class or series of capital stock that is convertible into Common Stock, the product of (A) the dividend declared, paid or set aside per share of such class or series of capital
stock and (B) the number of shares of Common Stock issuable upon conversion of a share of such Preferred Stock, divided by the number of shares of Common Stock issuable upon conversion of a share of such class or series of capital stock;
or (iii) in the case of a dividend on any class or series that is not convertible into Common Stock, the product of (A) the amount of the dividend payable on each share of such class or series of capital stock divided by the
original issuance price of such class or series of capital stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to such class or series) and (B) the
applicable Original Issue Price (as defined below); provided that, if the Corporation declares, pays or sets aside, on the same date, a dividend on shares of more than one class or series of capital stock of the Corporation, the dividend
payable to the holders of Preferred Stock pursuant to this Section 1 shall be calculated based upon the dividend on the class or series of capital stock that would result in the highest Preferred Stock dividend
2
for the applicable series of Preferred Stock. The “ Original Issue Price ” shall mean, with respect to the Series A Preferred Stock, $19.4228 per share, with respect to the
Series B Preferred Stock, $21.36508 per share and with respect to the Series B-1 Preferred Stock, $21.36508 per share, in each case subject to appropriate adjustment in the event of any stock dividend, stock
split, combination or other similar recapitalization with respect to the applicable Preferred Stock.
2. Liquidation, Dissolution or
Winding Up; Certain Mergers, Consolidations and Asset Sales.
2.1 Preferential Payments to Holders of Preferred Stock . In the
event of (a) any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, the holders of shares of each series of Preferred Stock then outstanding shall be entitled to be paid out of the assets of the Corporation
available for distribution to its stockholders, and (b) a Deemed Liquidation Event (as defined below), the holders of shares of each series of Preferred Stock then outstanding shall be entitled to be paid out of the consideration payable to
stockholders in such Deemed Liquidation Event or out of the Available Proceeds (as defined below), as applicable, on a pari passu basis based on their respective Liquidation Amounts (as defined below) and before any payment shall be made to
the holders of Common Stock by reason of their ownership thereof, an amount per share of each such series of Preferred Stock equal to the greater of (i) the applicable Original Issue Price, plus any dividends declared but unpaid thereon, or
(ii) such amount per share as would have been payable had all shares of such series of Preferred Stock (and all shares of all other series of Preferred Stock that would receive a larger distribution per share if such series of Preferred Stock
were converted into Common Stock) been converted into Common Stock pursuant to Section 4 immediately prior to such liquidation, dissolution, winding up or Deemed Liquidation Event (the amount payable pursuant to this
sentence is hereinafter referred to, for each series of Preferred Stock, as applicable, as the “ Liquidation Amount ”). If upon any such liquidation, dissolution or winding up of
the Corporation or Deemed Liquidation Event, the assets of the Corporation available for distribution to its stockholders shall be insufficient to pay the holders of shares of Preferred Stock the full amount to which they shall be entitled under
this Section 2.1 , the holders of shares of Preferred Stock shall share ratably in any distribution of the assets available for distribution in proportion to the respective amounts which would otherwise be payable in respect
of the shares held by them upon such distribution if all amounts payable on or with respect to such shares were paid in full.
2.2
Payments to Holders of Common Stock . In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, after the payment in full of all Liquidation Amounts required to be paid to the holders of shares of
Preferred Stock, the remaining assets of the Corporation available for distribution to its stockholders or, in the case of a Deemed Liquidation Event, the consideration not payable to the holders of shares of Preferred Stock pursuant to
Section 2.1 or the remaining Available Proceeds, as the case may be, shall be distributed among the holders of shares of Common Stock, pro rata based on the number of shares of Common Stock held by each such holder.
2.3 Deemed Liquidation Events .
2.3.1 Definition . Each of the following events shall be considered a “ Deemed Liquidation Event ” unless the holders
of a majority of the outstanding shares of Preferred Stock, voting together as a single class on an as-converted to Common Stock basis (the “ Requisite Holders ”), elect otherwise by written
notice sent to the Corporation at least 10 days prior to the effective date of any such event:
(a) a merger, consolidation, statutory
conversion, transfer, domestication, or continuance in which
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the Corporation is a constituent party or
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a subsidiary of the Corporation is a constituent party and the Corporation issues shares of its capital stock
pursuant to such merger, consolidation, statutory conversion, transfer, domestication or continuance,
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except any such merger,
consolidation, statutory conversion, transfer, domestication, or continuance involving the Corporation or a subsidiary in which the shares of capital stock of the Corporation outstanding immediately prior to such merger, consolidation, statutory
conversion, transfer, domestication, or continuance continue to represent, or are converted into or exchanged for shares of capital stock or other equity interests that represent, immediately following such merger, consolidation, statutory
conversion, transfer, domestication, or continuance, a majority, by voting power, of the capital stock or other equity interests of (1) the surviving or resulting corporation or entity; or (2) if the surviving or resulting corporation or
entity is a wholly owned subsidiary of another corporation or entity immediately following such merger, consolidation, statutory conversion, transfer, domestication, or continuance, the parent corporation or entity of such surviving or resulting
corporation or entity; or
(b) (i) the sale, lease, transfer, exclusive license or other disposition, in a single transaction or
series of related transactions, by the Corporation or any subsidiary of the Corporation of all or substantially all the assets of the Corporation and its subsidiaries taken as a whole or (ii) the sale, lease, transfer, exclusive license or
other disposition (whether by merger, consolidation, statutory conversion, domestication, continuance or otherwise, and whether in a single transaction or a series of related transactions) of one or more subsidiaries of the Corporation if
substantially all of the assets of the Corporation and its subsidiaries taken as a whole are held by such subsidiary or subsidiaries, except where such sale, lease, transfer, exclusive license or other disposition is to a wholly owned subsidiary of
the Corporation.
2.3.2 Effecting a Deemed Liquidation Event .
(a) The Corporation shall not have the power to effect a Deemed Liquidation Event referred to in
Section 2.3.1(a)(i) unless the agreement or plan with respect to such transaction, or terms of such transaction (any such agreement, plan or terms, the “ Transaction Document ”), provide that the
consideration payable to the stockholders of the Corporation in such Deemed Liquidation Event shall be allocated to the holders of capital stock of the Corporation in accordance with Sections 2.1 and 2.2 .
(b) In the event of a Deemed Liquidation Event referred to in Section 2.3.1(a)(ii) or 2.3.1(b) , if the
Corporation does not effect a dissolution of the Corporation under the General Corporation Law within 90 days after such Deemed Liquidation Event, then (i) the Corporation shall send a written notice to each holder of Preferred Stock no later
than the 90th day after the Deemed Liquidation Event advising such holders of their right (and the requirements to be met to secure such right) pursuant to the terms of the following clause (ii) to require the redemption of such shares of
Preferred Stock, and (ii) if the Requisite Holders so request in a written instrument delivered to the Corporation not later than 120 days after such Deemed Liquidation Event, the Corporation shall use the consideration received by the
Corporation for such Deemed Liquidation Event (net of any retained liabilities associated with the assets sold or technology licensed, any other expenses reasonably related to such Deemed Liquidation Event or any other expenses incident to the
dissolution of the Corporation as provided herein, in each case as determined in good faith by the Board of Directors), together with any other assets of the Corporation available for distribution to its stockholders, all to the extent permitted by
Delaware law governing
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distributions to stockholders (the “ Available Proceeds ”) on the 150th day after such Deemed Liquidation Event (the “ DLE Redemption Date ”), to redeem all
outstanding shares of Preferred Stock at a price per share equal to the applicable Liquidation Amount; provided , that if the definitive agreements governing such Deemed Liquidation Event contain contingent indemnification obligations on the
part of the Corporation and prohibit the Corporation from distributing all or a portion of the Available Proceeds while such indemnification obligations remain outstanding, then the DLE Redemption Date shall automatically be extended to the date
that is ten business days following the date on which such prohibition expires. Notwithstanding the foregoing, in the event of a redemption pursuant to the preceding sentence, if the Available Proceeds are not sufficient to redeem all outstanding
shares of Preferred Stock, the Corporation shall redeem a pro rata portion of each holder’s shares of Preferred Stock to the fullest extent of such Available Proceeds, based on the respective amounts which would otherwise be payable in respect
of the shares to be redeemed if the Available Proceeds were sufficient to redeem all such shares, and shall redeem the remaining shares as soon as it may lawfully do so under Delaware law governing distributions to stockholders. Prior to the
distribution or redemption provided for in this Section 2.3.2(b) , the Corporation shall not expend or dissipate the Available Proceeds for any purpose, except to discharge expenses incurred in connection with such Deemed
Liquidation Event. In connection with a distribution or redemption provided for in Section 2.3.2 , the Corporation shall send written notice of the redemption (the “ Redemption Notice ”) to each holder of
record of Preferred Stock. Each Redemption Notice shall state:
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the number of shares of Preferred Stock held by the holder that the Corporation shall redeem on the date
specified in the Redemption Notice;
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(ii) |
the redemption date and the price per share at which the shares of Preferred Stock are being redeemed;
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(iii) |
for holders of shares in certificated form, that the holder is to surrender to the Corporation, in the manner
and at the place designated, his, her or its certificate or certificates representing the shares of Preferred Stock to be redeemed.
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If
the Redemption Notice shall have been duly given, and if payment is tendered or deposited with an independent payment agent so as to be available therefor in a timely manner, then notwithstanding that any certificates evidencing any of the shares of
Preferred Stock so called for redemption shall not have been surrendered, all rights with respect to such shares shall forthwith after the date terminate, except only the right of the holders to receive the payment without interest upon surrender of
any such certificate or certificates therefor.
2.3.3 Amount Deemed Paid or Distributed . The amount deemed paid or distributed to
the holders of capital stock of the Corporation upon any such merger, consolidation, sale, transfer, exclusive license, other disposition or redemption shall be the cash or the value of the property, rights or securities to be paid or distributed to
such holders pursuant to such Deemed Liquidation Event. The value of such property, rights or securities shall be determined in good faith by the Requisite Directors.
2.3.4 Allocation of Escrow and Contingent Consideration . In the event of a Deemed Liquidation Event pursuant to
Section 2.3.1(a)(i) , if any portion of the consideration payable to the stockholders of the Corporation is payable only upon satisfaction of contingencies (the “ Additional Consideration ”), the Transaction
Document shall provide that (a) the portion of such consideration that is not Additional Consideration (such portion, the “ Initial Consideration ”) shall be allocated among the
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holders of capital stock of the Corporation in accordance with Sections 2.1 and 2.2 as if the Initial Consideration were the only consideration payable in connection with such
Deemed Liquidation Event; and (b) any Additional Consideration which becomes payable to the stockholders of the Corporation upon satisfaction of such contingencies shall be allocated among the holders of capital stock of the Corporation in
accordance with Sections 2.1 and 2.2 after taking into account the previous payment of the Initial Consideration as part of the same transaction. For the purposes of this Section 2.3.4 , consideration placed
into escrow or retained as a holdback to be available for satisfaction of indemnification or similar obligations in connection with such Deemed Liquidation Event shall be deemed to be Additional Consideration.
3. Voting .
3.1
General . On any matter presented to the stockholders of the Corporation for their action or consideration at any meeting of stockholders of the Corporation (or by written consent of stockholders in lieu of a meeting), each holder of
outstanding shares of Preferred Stock shall be entitled to cast the number of votes equal to the number of whole shares of Common Stock into which the shares of Preferred Stock held by such holder are convertible (as provided in
Section 4 below) as of the record date for determining stockholders entitled to vote on such matter. Except as provided by law or by the other provisions of this Certificate of Incorporation, holders of Preferred Stock
shall vote together with the holders of Common Stock as a single class and on an as-converted to Common Stock basis; provided, that the holders of Series B-1 Preferred
Stock shall not be entitled to vote on the election of directors of the Corporation.
3.2 Election of Directors .
(a) At all times when at least 1,353,432 shares of Voting Preferred Stock remain outstanding (subject to appropriate adjustment in the event
of any stock dividend, stock split, combination, or other similar recapitalization with respect to the Voting Preferred Stock), (i) the holders of record of the shares of Voting Preferred Stock, exclusively and voting together as a separate class on
an as-converted to Common Stock basis, shall be entitled to elect two directors of the Corporation (the “ Preferred Directors ”); (ii) the holders of record of the shares of Common
Stock, exclusively and voting together as a separate class, shall be entitled to elect two directors of the Corporation; and (iii) the holders of record of the shares of Common Stock and of any other class or series of voting stock (other than
the Series B-1 Preferred Stock), exclusively and voting together as a single class on an as-converted to Common Stock basis, shall be entitled to elect the balance of
the total number of directors of the Corporation (the “ At-Large Directors ”).
(b) Any director elected as provided in Section 3.2(a)(i) or Section 3.2(a)(ii) or
appointed by the proviso of Section 3.2(a) may be removed without cause by, and only by, the affirmative vote of the holders of a majority of the shares of the class or series of capital stock entitled to elect such
director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders.
(c)
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(i) |
If the holders of shares of Voting Preferred Stock or Common Stock, as the case may be, fail to elect a
sufficient number of directors to fill all directorships for which they are entitled to elect directors pursuant to Section 3.2(a) (and to the extent any of such directorships is not otherwise
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filled by a director appointed in accordance with the proviso in Section 3.2(a) ), then any directorship not so filled shall remain vacant until such time as the holders
of the Voting Preferred Stock or Common Stock, as the case may be, fill such directorship in accordance with Section 3.2(a) . |
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(ii) |
A vacancy in any At-Large Director seat can be filled by either
(A) the vote or written consent in lieu of a meeting of the stockholders entitled to elect the At-Large Directors, or (B) the vote or written consent in lieu of a meeting of all remaining
director(s).
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(d) At any meeting held for the purpose of electing a director, the presence in person or by proxy of the
holders of a majority of the outstanding shares of the class or series of capital stock entitled to elect such director shall constitute a quorum for the purpose of electing such director.
(e) The “ Requisite Directors ” shall mean approval by the Board of Directors including the approval of each of the
Preferred Directors then seated.
3.3 Preferred Stock Protective Provisions . At any time when at least 13,495,968 shares of
Preferred Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Preferred Stock) are outstanding, the Corporation shall not, either directly or
indirectly by amendment, merger, consolidation, domestication, transfer, continuance, recapitalization, reclassification, waiver, statutory conversion, or otherwise, effect any of the following acts or transactions without (in addition to any other
vote required by law or this Certificate of Incorporation) the written consent or affirmative vote of the Requisite Holders, and any such act or transaction that has not been approved by such consent or vote prior to such act or transaction
being effected shall be null and void ab initio , and of no force or effect.
3.3.1 liquidate, dissolve or wind-up the business and affairs of the Corporation or effect any Deemed Liquidation Event or any other merger, consolidation, statutory conversion, transfer, domestication or continuance;
3.3.2 amend, alter or repeal any provision of this Certificate of Incorporation or Bylaws of the Corporation;
3.3.3 create or issue or obligate itself to issue shares of, or reclassify, any
capital stock unless the same ranks junior to the Preferred Stock with respect to its special rights, powers and preferences;
3.3.4
increase the authorized number of shares of Common Stock, Preferred Stock, or any additional class or series of capital stock of the Corporation unless the same ranks junior to the Preferred Stock with respect to its special rights, powers and
preferences;
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3.3.5 purchase or redeem (or permit any subsidiary to purchase or redeem) or pay or declare
any dividend or make any distribution on, any shares of capital stock of the Corporation other than (i) redemptions of or dividends or distributions on the Preferred Stock as expressly authorized herein, (ii) dividends or other
distributions payable on the Common Stock solely in the form of additional shares of Common Stock, and (iii) repurchases of stock from former employees, officers, directors, consultants or other persons who performed services for the
Corporation or any subsidiary in connection with the cessation of such employment or service at no greater than the original purchase price thereof;
3.3.6 (i) create or adopt, any equity (or equity-linked) compensation plan; (ii) amend any such plan to increase the number of shares
authorized for issuance thereunder; or (iii) amend or waive any of the terms of any option or other grant pursuant to any such plan;
3.3.7 unless (i) the aggregate indebtedness of the Corporation and its subsidiaries for borrowed money following such action would not
exceed $10,000,000 or (ii) approved by the Requisite Directors, create, or issue, any debt security, create any lien or security interest (except for purchase money liens or statutory liens of landlords, mechanics, materialmen, workmen,
warehousemen and other similar persons arising or incurred in the ordinary course of business), or incur other indebtedness for borrowed money, including but not limited to obligations and contingent obligations under guarantees, or permit any
subsidiary to take any such action with respect to any debt security lien, security interest or other indebtedness for borrowed money, in each case, other than equipment leases, bank lines of credit or trade payables incurred in the ordinary course
of business;
3.3.8 create, or hold capital stock in, any subsidiary that is not wholly owned (either directly or through one or more
other subsidiaries) by the Corporation, or permit any subsidiary to create, or issue or obligate itself to issue, any shares of any class or series of capital stock, or sell, transfer or otherwise dispose of any capital stock of any direct or
indirect subsidiary of the Corporation, or permit any direct or indirect subsidiary to sell, lease, transfer, exclusively license or otherwise dispose (in a single transaction or series of related transactions) of all or substantially all of the
assets of such subsidiary;
3.3.9 increase or decrease the authorized number of directors constituting the Board of Directors, change the
number of votes entitled to be cast by any director or directors on any matter, or adopt any provision inconsistent with Article Sixth ; or
3.3.10 unless otherwise approved by the Requisite Directors:
(a) sell, assign, license, pledge, or encumber material technology or intellectual property, other than in connection with ordinary course
product sales or licenses; or
(b) enter into any corporate strategic relationship involving the payment, contribution, or assignment by
the Corporation of money or assets having a value (as determined by the Board of Directors in a matter consistent with the agreements governing such relationship) greater than $10,000,000.
3.4 Nonvoting Series B-1 Preferred Stock Protective Provisions . At any time when any shares of
Series B-1 Preferred Stock are outstanding, the Corporation shall not, either directly or indirectly by amendment, merger, consolidation, domestication, transfer, continuance, recapitalization,
reclassification, waiver, statutory conversion, or otherwise, effect any of the following acts or transactions without (in addition to any other vote required by law or this Certificate of Incorporation) the written consent or affirmative vote of
the Requisite Holders, and any such act or transaction that has not been approved by such consent or vote prior to such act or transaction being effected shall be null and void ab initio , and of no force or effect.
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3.4.1 amend, alter or repeal any provision of this Certificate of Incorporation or Bylaws
of the Corporation in a manner that disproportionately and adversely affects the special rights, powers and preferences of the Series B-1 Preferred Stock relative to the Series B Preferred Stock;
3.4.2 effect any Deemed Liquidation Event or any other merger, consolidation, statutory conversion, transfer, domestication or continuance
pursuant to which the holders of the Series B-1 Preferred Stock immediately prior to such transaction are (i) issued securities with different special rights, powers and preferences than the securities
issued to the holders of the Series B Preferred Stock in such transaction and (ii) such securities have special rights, powers and preferences that are materially less favorable than the special rights, powers and preferences of such Series B-1 Preferred Stock immediately prior to such transaction;
3.4.3 create any capital stock that ranks
senior to the Series B-1 Preferred Stock with respect to its special rights, powers and preferences unless the same also ranks senior to the Series B Preferred Stock with respect to its special rights, powers
and preferences; or
3.4.4 increase or decrease the authorized number of shares of Series B-1
Preferred Stock.
4. Optional Conversion . The holders of the Preferred Stock shall have conversion rights as follows (the
“ Conversion Rights ”):
4.1 Right to Convert .
4.1.1 Conversion Ratio . Each share of Preferred Stock shall be convertible, at the option of the holder thereof, at any time, and
without the payment of additional consideration by the holder thereof, into such whole number of fully paid and non-assessable shares of Common Stock (calculated as provided in
Section 4.2 below), as is determined by dividing the applicable Original Issue Price by the applicable Conversion Price (as defined below) in effect at the time of conversion. The “ Conversion Price ” shall
be equal to $19.4228 per share of Series A Preferred Stock, $21.36508 per share of Series B Preferred Stock and $21.36508 per share of Series B-1 Preferred Stock. Such initial Conversion Price for a series of
Preferred Stock, and the rate at which shares of Preferred Stock may be converted into shares of Common Stock, shall be subject to adjustment as provided in this Section 4 .
4.1.2 Termination of Conversion Rights . In the event of a notice of redemption of any shares of Preferred Stock pursuant to
Section 2.3.2(b) , the Conversion Rights of the shares designated for redemption shall terminate at the close of business on the last full day preceding the date fixed for redemption, unless the redemption price is not fully
paid on such redemption date, in which case the Conversion Rights for such shares shall continue until such price is paid in full. In the event of a liquidation, dissolution or winding up of the Corporation or a Deemed Liquidation Event, the
Conversion Rights shall terminate at the close of business on the last full day preceding the date fixed for the payment of any such amounts distributable on such event to the holders of Preferred Stock; provided that the foregoing termination of
Conversion Rights shall not affect the amount(s) otherwise paid or payable in accordance with Section 2.1 to the holders of Preferred Stock pursuant to such liquidation, dissolution or winding up of the Corporation or a Deemed Liquidation
Event.
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4.2 Number of Shares Issuable Upon Conversion . The number of shares of Common Stock
issuable to a holder of Preferred Stock upon conversion of such Preferred Stock shall be the nearest whole share, after aggregating all fractional interests in shares of Common Stock that would otherwise be issuable upon conversion of all shares of
that same series of Preferred Stock being converted by such holder (with any fractional interests after such aggregation representing 0.5 or greater of a whole share being entitled to a whole share). For the avoidance of doubt, no fractional
interests in shares of Common Stock shall be created or issuable as a result of the conversion of the Preferred Stock pursuant to Section 4.1.1 .
4.3 Mechanics of Conversion .
4.3.1 Notice of Conversion . In order for a holder of Preferred Stock to voluntarily convert shares of Preferred Stock into shares of
Common Stock, such holder shall (a) provide written notice to the Corporation’s transfer agent at the office of the transfer agent for the Preferred Stock (or at the principal office of the Corporation if the Corporation serves as its own
transfer agent) that such holder elects to convert all or any number of such holder’s shares of Preferred Stock and, if applicable, any event on which such conversion is contingent and (b), if such holder’s shares are certificated,
surrender the certificate or certificates for such shares of Preferred Stock (or, if such registered holder alleges that such certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to the
Corporation to indemnify the Corporation against any claim that may be made against the Corporation on account of the alleged loss, theft or destruction of such certificate), at the office of the transfer agent for the Preferred Stock (or at the
principal office of the Corporation if the Corporation serves as its own transfer agent). Such notice shall state such holder’s name or the names of the nominees in which such holder wishes the shares of Common Stock to be issued. If required
by the Corporation, any certificates surrendered for conversion shall be endorsed or accompanied by a written instrument or instruments of transfer, in form satisfactory to the Corporation, duly executed by the registered holder or his, her or its
attorney duly authorized in writing. Unless a later time and date is otherwise specified by the Corporation, the close of business on the date of receipt by the transfer agent (or by the Corporation if the Corporation serves as its own transfer
agent) of such notice and, if applicable, certificates (or lost certificate affidavit and agreement) shall be the time of conversion (the “ Conversion Time ”), and the shares of Common Stock issuable upon conversion of the specified
shares shall be deemed to be outstanding of record as of such date. The Corporation shall, as soon as practicable after the Conversion Time (i) issue and deliver to such holder of Preferred Stock, or to his, her or its nominees, a certificate
or certificates (or book-entry accounts) for the number of full shares of Common Stock issuable upon such conversion in accordance with the provisions hereof and a certificate for the number (if any) of the shares of Preferred Stock represented by
the surrendered certificate that were not converted into Common Stock, and (ii) pay all declared but unpaid dividends on the shares of Preferred Stock converted.
4.3.2 Reservation of Shares . The Corporation shall at all times when the Preferred Stock shall be outstanding, reserve and keep
available out of its authorized but unissued capital stock, for the purpose of effecting the conversion of the Preferred Stock, such number of its duly authorized shares of Common Stock as shall from time to time be sufficient to effect the
conversion of all outstanding Preferred Stock; and if at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the conversion of all then outstanding shares of the Preferred Stock, the Corporation
shall take such corporate action as may be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purposes, including, without limitation, engaging in best efforts to obtain
the requisite stockholder approval of any necessary amendment to this Certificate of Incorporation. Before taking any action that would cause an adjustment reducing the Conversion Price for any series of Preferred Stock below the then par value of
the shares of Common Stock issuable upon conversion of such series of Preferred Stock, the Corporation will take any corporate action which may, in the opinion of its counsel, be necessary in order that the Corporation may validly and legally issue
fully paid and non-assessable shares of Common Stock at such adjusted Conversion Price.
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4.3.3 Effect of Conversion . All shares of Preferred Stock which shall have been
surrendered for conversion as herein provided shall no longer be deemed to be outstanding and all rights with respect to such shares shall immediately cease and terminate at the Conversion Time, except only the right of the holders thereof to
receive shares of Common Stock in exchange therefor and to receive payment of any dividends declared but unpaid thereon.
4.3.4 No
Further Adjustment . Upon any such conversion, no adjustment to the Conversion Price shall be made for any declared but unpaid dividends on the Preferred Stock surrendered for conversion or on the Common Stock delivered upon conversion.
4.3.5 Taxes . The Corporation shall pay any and all issue and other similar taxes that may be payable in respect of any issuance or
delivery of shares of Common Stock upon conversion of shares of Preferred Stock pursuant to this Section 4 . The Corporation shall not, however, be required to pay any tax which may be payable in respect of any transfer
involved in the issuance and delivery of shares of Common Stock in a name other than that in which the shares of Preferred Stock so converted were registered, and no such issuance or delivery shall be made unless and until the person or entity
requesting such issuance has paid to the Corporation the amount of any such tax or has established, to the satisfaction of the Corporation, that such tax has been paid.
4.4 Adjustments to Preferred Stock Conversion Price for Diluting Issues .
4.4.1 Special Definitions . For purposes of this Article Fourth, the following definitions shall apply:
(a) “ Additional Shares of Common Stock ” means all shares of Common Stock issued (or, pursuant to
Section 4.4.3 below, deemed to be issued) by the Corporation after the Original Issue Date (as defined below), other than (1) the following shares of Common Stock and (2) shares of Common Stock deemed issued
pursuant to the following Options and Convertible Securities (clauses (1) and (2), collectively, “ Exempted Securities ”):
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(i) |
as to any series of Preferred Stock, shares of Common Stock, Options or Convertible Securities issued as a
dividend or distribution on such series of Preferred Stock (including dividends payable in connection with dividends on other classes or series of stock);
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(ii) |
shares of Common Stock, Options or Convertible Securities issued by reason of a dividend, stock split, split-up or other distribution on shares of Common Stock that is covered by Section 4.5 , 4.6 , 4.7 or 4.8 ;
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(iii) |
shares of Common Stock, Options or Convertible Securities issued to banks, equipment lessors or other financial
institutions, or to real property lessors, pursuant to a debt financing, equipment leasing or real property leasing transaction approved by the Requisite Directors;
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(iv) |
shares of Common Stock or Options issued to employees or directors of, or consultants or advisors to, the
Corporation or any of its subsidiaries pursuant to a plan, agreement or arrangement approved (i) prior to the Original Issue Date or (ii) by the Requisite Directors;
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(v) |
shares of Common Stock or Convertible Securities actually issued upon the exercise of Options or shares of
Common Stock actually issued upon the conversion or exchange of Convertible Securities, in each case provided such issuance is pursuant to the terms of such Option or Convertible Security;
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(vi) |
shares of Common Stock, Options or Convertible Securities issued to suppliers or third party service providers
in connection with the provision of goods or services pursuant to transactions approved by the Requisite Directors;
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(vii) |
shares of Common Stock, Options or Convertible Securities issued as acquisition consideration pursuant to the
acquisition of another corporation by the Corporation by merger, purchase of substantially all of the assets, license or other reorganization or to a joint venture agreement or other similar strategic transaction; provided that such issuances are
approved by the Requisite Directors; or
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(viii) |
shares of Common Stock, Options or Convertible Securities issued in connection with sponsored research,
collaboration, technology license, development, OEM, marketing or other similar agreements or strategic partnerships approved by the Requisite Directors.
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(b) “ Convertible Securities ” means any evidences of indebtedness, shares or other securities directly or indirectly
convertible into or exchangeable for Common Stock, but excluding Options.
(c) “ Option ” means any rights, options or
warrants to subscribe for, purchase or otherwise acquire Common Stock or Convertible Securities.
(d) “ Original Issue
Date ” means the date on which the first share of Series B Preferred Stock is issued.
4.4.2 No Adjustment of Preferred
Stock Conversion Price . No adjustment in the Conversion Price of any series of Preferred Stock shall be made as the result of the issuance or deemed issuance of Additional Shares of Common Stock if the Corporation receives
written notice from the Requisite Holders, agreeing that no such adjustment shall be made as the result of the issuance or deemed issuance of such Additional Shares of Common Stock.
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4.4.3 Deemed Issue of Additional Shares of Common Stock .
(a) If the Corporation at any time or from time to time after the Original Issue Date shall issue any Options or Convertible Securities
(excluding Options or Convertible Securities which are themselves Exempted Securities) or shall fix a record date for the determination of holders of any class of securities entitled to receive any such Options or Convertible Securities, then the
maximum number of shares of Common Stock (as set forth in the instrument relating thereto, assuming the satisfaction of any conditions to exercisability, convertibility or exchangeability but without regard to any provision contained therein for a
subsequent adjustment of such number) issuable upon the exercise of such Options or, in the case of Convertible Securities and Options therefor, the conversion or exchange of such Convertible Securities, shall be deemed to be Additional Shares of
Common Stock issued as of the time of such issue or, in case such a record date shall have been fixed, as of the close of business on such record date.
(b) If the terms of any Option or Convertible Security, the issuance of which resulted in an adjustment to the Conversion Price of any series
of Preferred Stock pursuant to the terms of Section 4.4.4 , are revised as a result of an amendment to such terms or any other adjustment pursuant to the provisions of such Option or Convertible Security (but excluding
automatic adjustments to such terms pursuant to anti-dilution or similar provisions of such Option or Convertible Security) to provide for either (1) any increase or decrease in the number of shares of Common Stock issuable upon the exercise,
conversion and/or exchange of any such Option or Convertible Security or (2) any increase or decrease in the consideration payable to the Corporation upon such exercise, conversion and/or exchange, then, effective upon such increase or decrease
becoming effective, the Conversion Price of such series of Preferred Stock computed upon the original issue of such Option or Convertible Security (or upon the occurrence of a record date with respect thereto) shall be readjusted to such Conversion
Price for such series of Preferred Stock as would have obtained had such revised terms been in effect upon the original date of issuance of such Option or Convertible Security. Notwithstanding the foregoing, no readjustment pursuant to this
Section 4.4.3(b) shall have the effect of increasing the Conversion Price applicable to a series of Preferred Stock to an amount which exceeds the lower of (i) the Conversion Price for such series of Preferred Stock in
effect immediately prior to the original adjustment made as a result of the issuance of such Option or Convertible Security, or (ii) the Conversion Price for such series of Preferred Stock that would have resulted from any issuances of
Additional Shares of Common Stock (other than deemed issuances of Additional Shares of Common Stock as a result of the issuance of such Option or Convertible Security) between the original adjustment date and such readjustment date.
(c) If the terms of any Option or Convertible Security (excluding Options or Convertible Securities which are themselves Exempted
Securities), the issuance of which did not result in an adjustment to the Conversion Price of a series of Preferred Stock pursuant to the terms of Section 4.4.4 (either because the consideration per share (determined
pursuant to Section 4.4.5 ) of the Additional Shares of Common Stock subject thereto was equal to or greater than the Conversion Price then in effect, or because such Option or Convertible Security was issued before the
Original Issue Date), are revised after the Original Issue Date as a result of an amendment to such terms or any other adjustment pursuant to the provisions of such Option or Convertible Security (but excluding automatic adjustments to such terms
pursuant to anti-dilution or similar provisions of such Option or Convertible Security) to provide for either (1) any increase in the number of shares of Common Stock issuable upon the exercise, conversion or exchange of any such Option or
Convertible Security or (2) any decrease in the consideration payable to the Corporation upon such exercise, conversion or exchange, then such Option or Convertible Security, as so amended or adjusted, and the Additional Shares of Common Stock
subject thereto determined in the manner provided in Section 4.4.3(a) shall be deemed to have been issued effective upon such increase or decrease becoming effective.
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(d) Upon the expiration or termination of any unexercised Option or unconverted or
unexchanged Convertible Security (or portion thereof) which resulted (either upon its original issuance or upon a revision of its terms) in an adjustment to the Conversion Price of any series of Preferred Stock pursuant to the terms of
Section 4.4.4 , the Conversion Price of such series of Preferred Stock shall be readjusted to such Conversion Price for such series of Preferred Stock as would have obtained had such Option or Convertible Security (or
portion thereof) never been issued.
(e) If the number of shares of Common Stock issuable upon the exercise, conversion and/or exchange
of any Option or Convertible Security, or the consideration payable to the Corporation upon such exercise, conversion and/or exchange, is calculable at the time such Option or Convertible Security is issued or amended but is potentially subject to
adjustment based upon subsequent events, any adjustment to the Conversion Price of a series of Preferred Stock provided for in this Section 4.4.3 shall be effected at the time of such issuance or amendment based on such
number of shares or amount of consideration without regard to any provisions for subsequent adjustments (and any subsequent adjustments shall be treated as provided in clauses (b) and (c) of this
Section 4.4.3 ). If the number of shares of Common Stock issuable upon the exercise, conversion and/or exchange of any Option or Convertible Security, or the consideration payable to the Corporation upon such exercise,
conversion and/or exchange, cannot be calculated at all at the time such Option or Convertible Security is issued or amended, any adjustment to the Conversion Price of a series of Preferred Stock that would result under the terms of this
Section 4.4.3 at the time of such issuance or amendment shall instead be effected at the time such number of shares and/or amount of consideration is first calculable (even if subject to subsequent adjustments), assuming
for purposes of calculating such adjustment to the Conversion Price for such series of Preferred Stock that such issuance or amendment took place at the time such calculation can first be made. In the event an Option or Convertible Security contains
alternative conversion terms, such as a cap on the valuation of the Corporation at which such conversion will be effected, or circumstances where the Option or Convertible Security may be repaid in lieu of conversion, then the number of shares of
Common Stock issuable upon the exercise, conversion and/or exchange of such Option or Convertible Security shall be deemed not calculable until such time as the applicable conversion terms are determined.
4.4.4 Adjustment of Conversion Price Upon Issuance of Additional Shares of Common Stock . In the event the Corporation shall at any
time after the Original Issue Date issue Additional Shares of Common Stock (including Additional Shares of Common Stock deemed to be issued pursuant to Section 4.4.3 ), without consideration or for a consideration per share
less than the Conversion Price of a series of Preferred Stock in effect immediately prior to such issuance or deemed issuance, then the Conversion Price for such series of Preferred Stock shall be reduced, concurrently with such issue, to a price
(calculated to the nearest one-hundredth of a cent) determined in accordance with the following formula:
CP 2 = CP 1 * (A + B) / (A + C).
For purposes of the foregoing formula, the following definitions shall apply:
(a) “CP 2 ” shall mean the Conversion Price of such series of Preferred
Stock in effect immediately after such issuance or deemed issuance of Additional Shares of Common Stock;
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(b) “CP 1 ” shall mean
the Conversion Price of such series of Preferred Stock in effect immediately prior to such issuance or deemed issuance of Additional Shares of Common Stock;
(c) “A” shall mean the number of shares of Common Stock outstanding immediately prior to such issuance or deemed issuance of
Additional Shares of Common Stock (treating for this purpose as outstanding all shares of Common Stock issuable upon exercise of Options outstanding immediately prior to such issuance or deemed issuance or upon conversion or exchange of Convertible
Securities (including the Preferred Stock) outstanding (assuming exercise of any outstanding Options therefor) immediately prior to such issue);
(d) “B” shall mean the number of shares of Common Stock that would have been issued if such Additional Shares of Common Stock had
been issued or deemed issued at a price per share equal to CP 1 (determined by dividing the aggregate consideration received by the Corporation in respect of such issue by CP 1 ); and
(e) “C” shall mean the number of such Additional Shares of Common
Stock issued in such transaction.
4.4.5 Determination of Consideration . For purposes of this
Section 4.4 , the consideration received by the Corporation for the issuance or deemed issuance of any Additional Shares of Common Stock shall be computed as follows:
(a) Cash and Property . Such consideration shall:
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(i) |
insofar as it consists of cash, be computed at the aggregate amount of cash received by the Corporation,
excluding amounts paid or payable for accrued interest;
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(ii) |
insofar as it consists of property other than cash, be computed at the fair market value thereof at the time of
such issue, as determined in good faith by the Board of Directors; and
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(iii) |
in the event Additional Shares of Common Stock are issued together with other shares or securities or other
assets of the Corporation for consideration which covers both, be the proportion of such consideration so received, computed as provided in clauses (i) and (ii) above, as determined in good faith by the Board of Directors.
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(b) Options and Convertible Securities . The consideration per share received by the Corporation for Additional
Shares of Common Stock deemed to have been issued pursuant to Section 4.4.3 , relating to Options and Convertible Securities, shall be determined by dividing:
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(i) |
The total amount, if any, received or receivable by the Corporation as consideration for the issue of such
Options or Convertible Securities, plus the minimum aggregate amount of additional consideration (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such consideration)
payable to the Corporation upon the exercise of such Options or the conversion or exchange of such Convertible Securities, or in the case of Options for Convertible Securities, the exercise of such Options for Convertible Securities and the
conversion or exchange of such Convertible Securities, by
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(ii) |
the maximum number of shares of Common Stock (as set forth in the instruments relating thereto, without regard
to any provision contained therein for a subsequent adjustment of such number) issuable upon the exercise of such Options or the conversion or exchange of such Convertible Securities, or in the case of Options for Convertible Securities, the
exercise of such Options for Convertible Securities and the conversion or exchange of such Convertible Securities.
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4.4.6 Multiple Closing Dates . In the event the Corporation shall issue on more than one date Additional Shares of Common Stock that
are a part of one transaction or a series of related transactions and that would result in an adjustment to the Conversion Price of a series of Preferred Stock pursuant to the terms of Section 4.4.4 , and such issuance dates
occur within a period of no more than 180 days from the first such issuance to the final such issuance, then, upon the final such issuance, the Conversion Price for such series of Preferred Stock shall be readjusted to give effect to all such
issuances as if they occurred on the date of the first such issuance (and without giving effect to any additional adjustments as a result of any such subsequent issuances within such period).
4.5 Adjustment for Stock Splits and Combinations . If the Corporation shall at any time or from time to time after the Original Issue
Date effect a subdivision of the outstanding Common Stock, the Conversion Price of each series of Preferred Stock in effect immediately before that subdivision shall be proportionately decreased so that the number of shares of Common Stock issuable
on conversion of each share of such series shall be increased in proportion to such increase in the aggregate number of shares of Common Stock outstanding. If the Corporation shall at any time or from time to time after the Original Issue Date
combine the outstanding shares of Common Stock, the Conversion Price of each series of Preferred Stock in effect immediately before the combination shall be proportionately increased so that the number of shares of Common Stock issuable on
conversion of each share of such series shall be decreased in proportion to such decrease in the aggregate number of shares of Common Stock outstanding. Any adjustment under this Section 4.5 shall become effective at the
close of business on the date the subdivision or combination becomes effective.
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4.6 Adjustment for Certain Dividends and Distributions . In the event the Corporation
at any time or from time to time after the Original Issue Date shall make or issue, or fix a record date for the determination of holders of Common Stock entitled to receive, a dividend or other distribution payable on the Common Stock in additional
shares of Common Stock, then and in each such event the Conversion Price of each series of Preferred Stock in effect immediately before such event shall be decreased as of the time of such issuance or, in the event such a record date shall have been
fixed, as of the close of business on such record date, by multiplying the Conversion Price of each such series of Preferred Stock then in effect by a fraction:
(1) the numerator of which shall be the total number of shares of Common Stock issued and outstanding immediately prior to the time of such
issuance or the close of business on such record date, and
(2) the denominator of which shall be the total number of shares of Common
Stock issued and outstanding immediately prior to the time of such issuance or the close of business on such record date plus the number of shares of Common Stock issuable in payment of such dividend or distribution.
Notwithstanding the foregoing, (a) if such record date shall have been fixed and such dividend is not fully paid or if such distribution is not fully
made on the date fixed therefor, the Conversion Price of each series of Preferred Stock shall be recomputed accordingly as of the close of business on such record date and thereafter the Conversion Price of each series of Preferred Stock shall be
adjusted pursuant to this Section 4.6 as of the time of actual payment of such dividends or distributions; and (b) no such adjustment shall be made if the holders of such series of Preferred Stock simultaneously
receive a dividend or other distribution of shares of Common Stock in a number equal to the number of shares of Common Stock as they would have received if all outstanding shares of such series of Preferred Stock had been converted into Common Stock
on the date of such event.
4.7 Adjustments for Other Dividends and Distributions . In the event the Corporation at any time or from
time to time after the Original Issue Date shall make or issue, or fix a record date for the determination of holders of Common Stock entitled to receive, a dividend or other distribution payable in securities of the Corporation (other than a
distribution of shares of Common Stock in respect of outstanding shares of Common Stock) or in other property and the provisions of Section 1 do not apply to such dividend or distribution, then and in each such event the
holders of Preferred Stock shall receive, simultaneously with the distribution to the holders of Common Stock, a dividend or other distribution of such securities or other property in an amount equal to the amount of such securities or other
property as they would have received if all outstanding shares of Preferred Stock had been converted into Common Stock on the date of such event.
4.8 Adjustment for Merger or Reorganization, etc . Subject to the provisions of Section 2.3 , if there shall
occur any reorganization, recapitalization, reclassification, consolidation or merger involving the Corporation in which the Common Stock (but not the Preferred Stock) is converted into or exchanged for securities, cash or other property (other than
a transaction covered by Sections 4.4 , 4.6 or 4.7 ), then, following any such reorganization, recapitalization, reclassification, consolidation or merger, each share of Preferred Stock shall thereafter be convertible in lieu of
the Common Stock into which it was convertible prior to such event into the kind and amount of securities, cash or other property which a holder of the number of shares of Common Stock of the Corporation issuable upon conversion of one share of such
Preferred Stock immediately prior to such reorganization, recapitalization, reclassification, consolidation or merger would have been entitled to receive pursuant to such transaction; and, in such case, appropriate adjustment (as determined in good
faith by the Board of Directors) shall be made in the application of the provisions in this Section 4 with respect to the rights and interests thereafter of the holders of the Preferred Stock, to the end that the provisions
set forth in this Section 4 (including provisions with respect to changes in and other adjustments of the Conversion Price of each series of Preferred Stock) shall thereafter be applicable, as nearly as reasonably may be,
in relation to any securities or other property thereafter deliverable upon the conversion of the Preferred Stock.
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4.9 Certificate as to Adjustments . Upon the occurrence of each adjustment or
readjustment of the Conversion Price of a series of Preferred Stock pursuant to this Section 4 , the Corporation at its expense shall, as promptly as reasonably practicable but in any event not later than ten days
thereafter, compute such adjustment or readjustment in accordance with the terms hereof and furnish to each holder of such series of Preferred Stock a certificate setting forth such adjustment or readjustment (including the kind and amount of
securities, cash or other property into which such series of Preferred Stock is convertible) and showing in detail the facts upon which such adjustment or readjustment is based. The Corporation shall, as promptly as reasonably practicable after the
written request at any time of any holder of Preferred Stock (but in any event not later than 10 days thereafter), furnish or cause to be furnished to such holder a certificate setting forth (i) the Conversion Price then in effect for each
series of Preferred Stock held by such holder, and (ii) the number of shares of Common Stock and the amount, if any, of other securities, cash or property which then would be received upon the conversion of each such series of Preferred Stock.
4.10 Notice of Record Date . In the event:
(a) the Corporation shall take a record of the holders of its Common Stock (or other capital stock or securities at the time issuable upon
conversion of the Preferred Stock) for the purpose of entitling or enabling them to receive any dividend or other distribution, or to receive any right to subscribe for or purchase any shares of capital stock of any class or series or any other
securities, or to receive any other security; or
(b) of any capital reorganization of the Corporation, any reclassification of the
Common Stock of the Corporation, or any Deemed Liquidation Event; or
(c) of the voluntary or involuntary dissolution, liquidation or winding-up of the Corporation,
then, and in each such case, the Corporation will send or cause to be sent to the
holders of the Preferred Stock a notice specifying, as the case may be, (i) the record date for such dividend, distribution or right, and the amount and character of such dividend, distribution or right, or (ii) the effective date on which
such reorganization, reclassification, consolidation, merger, transfer, dissolution, liquidation or winding-up is proposed to take place, and the time, if any is to be fixed, as of which the holders of record
of Common Stock (or such other capital stock or securities at the time issuable upon the conversion of the Preferred Stock) shall be entitled to exchange their shares of Common Stock (or such other capital stock or securities) for securities or
other property deliverable upon such reorganization, reclassification, consolidation, merger, transfer, dissolution, liquidation or winding-up, and the amount per share and character of such exchange
applicable to the Preferred Stock and the Common Stock. Such notice shall be sent at least 10 days prior to the record date or effective date for the event specified in such notice.
5. Mandatory Conversion .
5.1 Trigger Events . All outstanding shares of Preferred Stock shall automatically be converted into shares of Common Stock, at the then
effective conversion rate as calculated pursuant to Sections 4.1.1 and 4.2 , upon the earliest to occur of (the time of such conversion is referred to herein as the “ Mandatory Conversion Time ”):
(a) immediately prior to the closing of the sale of shares of Common Stock to the public in a firm-commitment underwritten public
offering pursuant to an effective registration statement under the Securities Act of 1933, as amended, resulting in at least $125,000,000 of gross proceeds to the Corporation and in connection with such offering the shares of Common Stock are listed
for trading on the Nasdaq Stock Market, the New York Stock Exchange or another exchange or marketplace approved by the Requisite Directors (a “ Qualified IPO ”); and
18
(b) the date and time, or upon the occurrence of an event, specified by vote or written
consent of the Requisite Holders.
5.2 Procedural Requirements . All holders
of record of shares of Preferred Stock (or the applicable series thereof) shall be sent written notice of the Mandatory Conversion Time and the place designated for mandatory conversion of all such shares of Preferred Stock pursuant to this
Section 5 . Such notice need not be sent in advance of the occurrence of the Mandatory Conversion Time. Upon receipt of such notice, each holder of shares of Preferred Stock being converted that holds such shares of
Preferred Stock in certificated form shall surrender his, her or its certificate or certificates for all such shares (or, if such holder alleges that such certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement
reasonably acceptable to the Corporation to indemnify the Corporation against any claim that may be made against the Corporation on account of the alleged loss, theft or destruction of such certificate) to the Corporation at the place designated in
such notice. If so required by the Corporation, any certificates surrendered for conversion shall be endorsed or accompanied by written instrument or instruments of transfer, in form satisfactory to the Corporation, duly executed by the registered
holder or by his, her or its attorney duly authorized in writing. All rights with respect to the Preferred Stock converted pursuant to Section 5.1 , including the rights, if any, to receive notices and vote (other than as a
holder of Common Stock), will terminate at the Mandatory Conversion Time (notwithstanding the failure of the holder or holders thereof to surrender any certificates at or prior to such time), except only the rights of the holders thereof, upon
surrender of any certificate or certificates of such holders (or lost certificate affidavit and agreement) therefor, to receive the items provided for in the next sentence of this Section 5.2 . As soon as practicable after
the Mandatory Conversion Time and, if applicable, the surrender of any certificate or certificates (or lost certificate affidavit and agreement) for Preferred Stock, the Corporation shall (a) issue and deliver to such holder, or to his, her or
its nominees, a certificate or certificates for the number of full shares of Common Stock issuable on such conversion in accordance with the provisions hereof or issue and deliver to such holder, or to his, her or its nominees, a notice of issuance
of uncertificated shares and may, upon written request, issue and deliver a certificate for the number of full shares of Common Stock issuable upon such conversion in accordance with the provisions hereof; and (b) pay any declared but unpaid
dividends on the shares of Preferred Stock converted.
6. Redemption . Other than as set forth in
Section 2.3.2(b) , the Preferred Stock is not redeemable at the option of the holder or the Corporation.
7.
Redeemed or Otherwise Acquired Shares . Unless approved by the Board of Directors and the Requisite Holders, any shares of Preferred Stock that are redeemed, converted or otherwise acquired by the Corporation or any of its subsidiaries shall
be automatically and immediately cancelled and retired and shall not be reissued, sold or transferred. Neither the Corporation nor any of its subsidiaries may exercise any voting or other rights granted to the holders of Preferred Stock following
redemption, conversion or acquisition. The Corporation may thereafter take such appropriate action (without the need for stockholder action) as may be necessary to reduce the authorized number of shares of Preferred Stock accordingly.
8. Waiver . Except as otherwise set forth herein, (a) any of the rights, powers, preferences and other terms of the Preferred Stock
set forth herein may be waived on behalf of all holders of Preferred Stock by the affirmative written consent or vote of the holders that would otherwise be required to amend such right, powers, preferences, and other terms and (b) at any time
more than one series of Preferred Stock is issued and outstanding, any of the rights, powers, preferences and other terms of any series of Preferred Stock set forth herein may be waived on behalf of all holders of such series of Preferred Stock by
the affirmative written consent or vote of the holders of such series that would otherwise be required to amend such right, power, preference, or other term.
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9. Notices . Any notice required or permitted by the provisions of this Article
Fourth to be given to a holder of shares of Preferred Stock shall be mailed, postage prepaid, to the post office address last shown on the records of the Corporation, or given by electronic transmission in compliance with the provisions of the
General Corporation Law, and shall be deemed sent upon such mailing or electronic transmission.
FIFTH : Subject to any
additional vote required by this Certificate of Incorporation or the Bylaws of the Corporation, in furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to make, repeal, alter, amend and
rescind any or all of the Bylaws of the Corporation.
SIXTH : Subject to any additional vote required by this Certificate of
Incorporation, the number of directors of the Corporation shall be determined in the manner set forth in the Bylaws of the Corporation. Until the earliest of (i) the Mandatory Conversion Time, (ii) such time as no Preferred Stock is
otherwise outstanding, or (iii) such time that no holder of Preferred Stock is entitled to elect a Preferred Director, any committee of the Board of Directors shall include any then-serving Preferred Director who wishes to serve on such
committee, unless the sole purpose of the committee is to consider a matter where such Preferred Director has a conflict of interest, as reasonably determined by the Board of Directors, or such Preferred Director chooses not to serve or has
otherwise recused himself or herself from such committee.
SEVENTH : Elections of directors need not be by written ballot
unless the Bylaws of the Corporation shall so provide.
EIGHTH : Meetings of stockholders may be held within or outside of the
State of Delaware, as the Bylaws of the Corporation may provide. The books of the Corporation may be kept (subject to any provision of applicable law) outside of the State of Delaware at such place or places or in such manner or manners as may be
designated from time to time by the Board of Directors or in the Bylaws of the Corporation.
NINTH : To the fullest extent
permitted by law, a director or officer of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director or officer. If the General Corporation Law or any other
law of the State of Delaware is amended after approval by the stockholders of this Article Ninth to authorize corporate action further eliminating or limiting the personal liability of directors or officers, then the liability of a director
or officer of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law as so amended.
Any amendment, repeal or elimination of the foregoing provisions of this Article Ninth by the stockholders of the Corporation shall not
adversely affect any right or protection of a director or officer of the Corporation existing at the time of, or increase the liability of any director or officer of the Corporation with respect to any acts or omissions of such director or officer
occurring prior to, such amendment, repeal or elimination.
TENTH : The following indemnification
provisions shall apply to the persons enumerated below.
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1. Right to Indemnification of Directors and Officers . The Corporation shall
indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (an “ Indemnified Person ”) who was or is made or is threatened to be made a party or is
otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “ Proceeding ”), by reason of the fact that such person, or a person for whom such person is the legal representative,
is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint
venture, limited liability company, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such
Indemnified Person in such Proceeding. Notwithstanding the preceding sentence, except as otherwise provided in Section 3 of this Article Tenth , the Corporation shall be required to indemnify an Indemnified Person in
connection with a Proceeding (or part thereof) commenced by such Indemnified Person only if the commencement of such Proceeding (or part thereof) by the Indemnified Person was authorized in advance by the Board of Directors.
2. Prepayment of Expenses of Directors and Officers . The Corporation shall pay the expenses (including attorneys’ fees) incurred
by an Indemnified Person in defending any Proceeding in advance of its final disposition, provided , however , that, to the extent required by law, such payment of expenses in advance of the final disposition of the Proceeding shall be
made only upon receipt of an undertaking by the Indemnified Person to repay all amounts advanced if it should be ultimately determined that the Indemnified Person is not entitled to be indemnified under this Article Tenth or otherwise.
3. Claims by Directors and Officers . If a claim for indemnification or advancement of expenses under this Article Tenth is not
paid in full within thirty (30) days after a written claim therefor by the Indemnified Person has been received by the Corporation, the Indemnified Person may file suit to recover the unpaid amount of such claim and, if successful in whole or
in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the Corporation shall have the burden of proving that the Indemnified Person is not entitled to the requested indemnification or advancement of expenses
under applicable law.
4. Indemnification of Employees and Agents . The Corporation may indemnify and advance expenses to any person
who was or is made or is threatened to be made or is otherwise involved in any Proceeding by reason of the fact that such person, or a person for whom such person is the legal representative, is or was an employee or agent of the Corporation or,
while an employee or agent of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, limited liability company, trust, enterprise or
nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such person in connection with such Proceeding. The ultimate
determination of entitlement to indemnification of persons who are non-director or officer employees or agents shall be made in such manner as is determined by the Board of Directors in its sole discretion.
Notwithstanding the foregoing sentence, the Corporation shall not be required to indemnify a person in connection with a Proceeding initiated by such person if the Proceeding was not authorized in advance by the Board of Directors.
5. Advancement of Expenses of Employees and Agents . The Corporation may pay the expenses (including attorneys’ fees) incurred by
an employee or agent in defending any Proceeding in advance of its final disposition on such terms and conditions as may be determined by the Board of Directors.
6. Non-Exclusivity of Rights . The rights conferred on any person by this Article Tenth
shall not be exclusive of any other rights which such person may have or hereafter acquire under any statute, provision of this Certificate of Incorporation, the Bylaws of the Corporation, or any agreement, or pursuant to any vote of stockholders or
disinterested directors or otherwise.
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7. Other Indemnification . The Corporation’s obligation, if any, to indemnify
any person who was or is serving at its request as a director, officer or employee of another corporation, partnership, limited liability company, joint venture, trust, organization or other enterprise shall be reduced by any amount such person may
collect as indemnification from such other corporation, partnership, limited liability company, joint venture, trust, organization or other enterprise.
8. Insurance . The Board of Directors may, to the full extent permitted by applicable law as it presently exists, or may hereafter be
amended from time to time, authorize an appropriate officer or officers to purchase and maintain at the Corporation’s expense insurance: (a) to indemnify the Corporation for any obligation which it incurs as a result of the
indemnification of directors, officers and employees under the provisions of this Article Tenth ; and (b) to indemnify or insure directors, officers and employees against liability in instances in which they may not otherwise be
indemnified by the Corporation under the provisions of this Article Tenth .
9. Amendment or Repeal . Any repeal or
modification of the foregoing provisions of this Article Tenth shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification. The rights
provided hereunder shall inure to the benefit of any Indemnified Person and such person’s heirs, executors and administrators.
ELEVENTH : The Corporation renounces, to the fullest extent permitted by law, any interest or expectancy of the Corporation in, or
in being offered an opportunity to participate in, any Excluded Opportunity. An “ Excluded Opportunity ” is any matter, transaction or interest that is presented to, or acquired, created or developed by, or which otherwise comes
into the possession of (i) any director of the Corporation who is not an employee of the Corporation or any of its subsidiaries, or (ii) any holder of Preferred Stock or any partner, member, director, stockholder, employee, affiliate or
agent of any such holder, other than someone who is an officer or employee of the Corporation or any of its subsidiaries (collectively, the persons referred to in clauses (i) and (ii) are “ Covered Persons ”),
unless such matter, transaction or interest is presented to, or acquired, created or developed by, or otherwise comes into the possession of, a Covered Person expressly and solely in such Covered Person’s capacity as a director of the
Corporation while such Covered Person is performing services in such capacity. Any repeal or modification of this Article Tenth will only be prospective and will not affect the rights under this Article Tenth in effect at the time of
the occurrence of any actions or omissions to act giving rise to liability. Notwithstanding anything to the contrary contained elsewhere in this Amended and Restated Certificate of Incorporation, the affirmative vote of the Requisite Holders will be
required to amend or repeal, or to adopt any provisions inconsistent with this Article Tenth .
TWELFTH : Unless the
Corporation consents in writing to the selection of an alternative forum, (a) the Court of Chancery in the State of Delaware shall be the sole and exclusive forum for any stockholder (including a beneficial owner) to bring (i) any
derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s
stockholders, (iii) any action asserting a claim against the Corporation, its directors, officers or employees arising pursuant to any provision of the General Corporation Law or the Corporation’s Restated Certificate or bylaws or
(iv) any action asserting a claim against the Corporation, its directors, officers or employees governed by the internal affairs doctrine or that otherwise relates to the internal affairs of the Corporation, except for, as to each of
(i) through (iv) above, any claim as to which the Court of Chancery determines that there is an indispensable party not subject to the jurisdiction of the Court of Chancery (and the indispensable party does not consent to the personal
jurisdiction of the Court of Chancery within 10 days following such determination), which
22
is vested in the exclusive jurisdiction of a court or forum other than the Court of Chancery, or for which the Court of Chancery does not have subject matter jurisdiction and (b) subject to
the preceding provisions of this Article Twelfth, the federal district courts of the United States of America shall be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act of 1933, as
amended. If any action the subject matter of which is within the scope of clause (a) of the immediately preceding sentence is filed in a court other than the courts in the State of Delaware (a “ Foreign Action ”) in the name of
any stockholder, such stockholder shall be deemed to have consented to (x) the personal jurisdiction of the state and federal courts in the State of Delaware in connection with any action brought in any such court to enforce the provisions of
clause (a) of the immediately preceding sentence and (y) having service of process made upon such stockholder in any such action by service upon such stockholder’s counsel in the Foreign Action as agent for such stockholder.
THIRTEENTH : If any provision or provisions of this Certificate of Incorporation shall be held to be invalid, illegal or
unenforceable as applied to any person or entity or circumstance for any reason whatsoever, then, to the fullest extent permitted by law, the validity, legality and enforceability of such provisions in any other circumstance and of the remaining
provisions of this Certificate of Incorporation (including, without limitation, each portion of any sentence of this Certificate of Incorporation containing any such provision held to be invalid, illegal or unenforceable that is not itself held to
be invalid, illegal or unenforceable) and the application of such provision to other persons or entities and circumstances shall not in any way be affected or impaired thereby.
* * *
3. That the
foregoing amendment and restatement was approved by the holders of the requisite number of shares of this corporation in accordance with Section 228 of the General Corporation Law.
4. That this Certificate of Incorporation, which restates and integrates and further amends the provisions of this Corporation’s
Amended and Restated Certificate of Incorporation, has been duly adopted in accordance with Sections 242 and 245 of the General Corporation Law.
[Signature Page Follows]
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IN WITNESS WHEREOF , this Second Amended and Restated Certificate of Incorporation has
been executed by a duly authorized officer of this corporation on September 4, 2025.
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By: |
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/s/ Tasso Gianakakos
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Tassos Gianakakos, Chief Executive Officer |
[ Signature Page to
Kardigan, Inc. - Second Amended & Restated Certificate of Incorporation ]
CERTIFICATE OF AMENDMENT
TO
SECOND AMENDED AND
RESTATED
CERTIFICATE OF INCORPORATION
OF
KARDIGAN, INC.
Kardigan, Inc. (the “ Corporation ”), a corporation organized and existing under the General Corporation Law of the
State of Delaware (the “ General Corporation Law ”), does hereby certify that:
1. That the name of the
Corporation is Kardigan, Inc., and that this Corporation was originally incorporated pursuant to the General Corporation Law on August 18, 2023 under the name EnCarda, Inc.
2. That the Second Amended and Restated Certificate of Incorporation of this Corporation was filed with the Secretary of State of the
State of Delaware on September 4, 2025 (the “ Existing Certificate ”).
3. That the Board of Directors of
this Corporation duly adopted a resolution setting forth a proposed amendment to the Existing Certificate, and declared said amendment to be advisable, and in the best interests of the Corporation and its stockholders, and authorizing the
appropriate officers of Corporation to solicit the consent of the stockholders therefor, which resolution setting forth the proposed amendment is as follows:
RESOLVED , that the Existing Certificate of the Corporation be amended as follows:
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1. |
The first paragraph of Article FOURTH of the Existing Certificate is hereby amended and restated in its
entirety to read as herein set forth in full:
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“The total number of shares of all classes of stock which the
Corporation shall have the authority to issue is 82,884,423. The Corporation has two classes of stock, referred to as Common Stock and Preferred Stock. There are 53,365,000 shares of authorized Common Stock, $0.00001 par value per share
(“ Common Stock ”) and 29,519,423 shares of authorized Preferred Stock, $0.00001 par value per share (“ Preferred Stock ”), 17,256,508 of which are hereby designated as “ Series A Preferred Stock ”,
8,482,146 of which are hereby designated as “ Series B Preferred Stock ” and 3,780,769 of which are hereby designated as “ Series B-1 Preferred Stock ”.”
* * *
4. The foregoing amendment was approved by the holders of the requisite number of shares of the Corporation in accordance with
Section 228 of the General Corporation Law.
5. That the Certificate of Amendment of the Second Amended and Restated Certificate
of Incorporation, which amends the provisions of the Corporation’s Existing Certificate, has been duly adopted in accordance with provisions of Section 242 of the General Corporation Law.
6. All other provisions of the Existing Certificate shall remain in full force and effect.
[ Remainder of page
intentionally left blank. ]
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment of the Second
Amended and Restated Certificate of Incorporation to be signed by its authorized officer as of the 9th day of October, 2025.
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KARDIGAN, INC. |
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/s/ Tassos Gianakakos
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Tassos Gianakakos |
Chief Executive Officer |
SECOND CERTIFICATE OF AMENDMENT
TO
SECOND AMENDED AND
RESTATED
CERTIFICATE OF INCORPORATION
OF
KARDIGAN, INC.
Kardigan, Inc. (the “ Corporation ”), a corporation organized and existing under the General Corporation Law of the
State of Delaware (the “ General Corporation Law ”), does hereby certify that:
1. That the name of the
Corporation is Kardigan, Inc., and that this Corporation was originally incorporated pursuant to the General Corporation Law on August 18, 2023 under the name EnCarda, Inc.
2. That the Second Amended and Restated Certificate of Incorporation of this Corporation was filed with the Secretary of State of the
State of Delaware on September 4, 2025 and amended on October 9, 2025 (the “ Existing Certificate ”).
3.
That the Board of Directors of this Corporation duly adopted a resolution setting forth a proposed amendment to the Existing Certificate, and declared said amendment to be advisable, and in the best interests of the Corporation and its
stockholders, and authorizing the appropriate officers of Corporation to solicit the consent of the stockholders therefor, which resolution setting forth the proposed amendment is as follows:
RESOLVED , that the Existing Certificate of the Corporation be amended as follows:
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1. |
The first paragraph of Article FOURTH of the Existing Certificate is hereby amended and restated in its
entirety to read as herein set forth in full:
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“The total number of shares of all classes of stock which the
Corporation shall have the authority to issue is 84,184,423. The Corporation has two classes of stock, referred to as Common Stock and Preferred Stock. There are 54,665,000 shares of authorized Common Stock, $0.00001 par value per share
(“ Common Stock ”) and 29,519,423 shares of authorized Preferred Stock, $0.00001 par value per share (“ Preferred Stock ”), 17,256,508 of which are hereby designated as “ Series A Preferred Stock ”,
8,482,146 of which are hereby designated as “ Series B Preferred Stock ” and 3,780,769 of which are hereby designated as “ Series B-1 Preferred Stock ”.”
* * *
4. The foregoing amendment was approved by the holders of the requisite number of shares of the Corporation in accordance with
Section 228 of the General Corporation Law.
5. That the Second Certificate of Amendment of the Second Amended and Restated
Certificate of Incorporation, which amends the provisions of the Corporation’s Existing Certificate, has been duly adopted in accordance with provisions of Section 242 of the General Corporation Law.
6. All other provisions of the Existing Certificate shall remain in full force and
effect.
[ Remainder of page
intentionally left blank. ]
IN WITNESS WHEREOF, the Corporation has caused this Second Certificate of Amendment of the
Second Amended and Restated Certificate of Incorporation to be signed by its authorized officer as of the 16th day of February, 2026.
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KARDIGAN, INC. |
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/s/ Tassos Gianakakos
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Tassos Gianakakos |
Chief Executive Officer |
THIRD CERTIFICATE OF AMENDMENT
TO
SECOND AMENDED AND
RESTATED
CERTIFICATE OF INCORPORATION
OF
KARDIGAN, INC.
Kardigan, Inc. (the “ Corporation ”), a corporation organized and existing under the General Corporation Law of the State of
Delaware (the “ General Corporation Law ”), does hereby certify that:
1. That the name of the Corporation is
Kardigan, Inc., and that this Corporation was originally incorporated pursuant to the General Corporation Law on August 18, 2023 under the name EnCarda, Inc.
2. That the Second Amended and Restated Certificate of Incorporation of this Corporation was filed with the Secretary of State of the
State of Delaware on September 4, 2025 and amended on October 9, 2025 and February 16, 2026 (the “ Existing Certificate ”).
3. That the Board of Directors of this Corporation duly adopted a resolution setting forth a proposed amendment to the Existing
Certificate, and declared said amendment to be advisable, and in the best interests of the Corporation and its stockholders, and authorizing the appropriate officers of Corporation to solicit the consent of the stockholders therefor, which
resolution setting forth the proposed amendment is as follows:
RESOLVED , that the Existing Certificate of the Corporation be
amended as follows:
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1. |
The first paragraph of Article FOURTH of the Existing Certificate is hereby amended and restated in its
entirety to read as herein set forth in full:
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“The total number of shares of all classes of stock which the
Corporation shall have the authority to issue is 85,120,529. The Corporation has two classes of stock, referred to as Common Stock and Preferred Stock. There are 55,133,053 shares of authorized Common Stock, $0.00001 par value per share
(“ Common Stock ”) and 29,987,476 shares of authorized Preferred Stock, $0.00001 par value per share (“ Preferred Stock ”), 17,256,508 of which are hereby designated as “ Series A Preferred Stock ”,
8,950,199 of which are hereby designated as “ Series B Preferred Stock ” and 3,780,769 of which are hereby designated as “ Series B-1 Preferred Stock ”.”
* * *
4. The foregoing amendment was approved by the holders of the requisite number of shares of the Corporation in accordance with
Section 228 of the General Corporation Law.
5. That the Third Certificate of Amendment of the Second Amended and Restated
Certificate of Incorporation, which amends the provisions of the Corporation’s Existing Certificate, has been duly adopted in accordance with provisions of Section 242 of the General Corporation Law.
6. All other provisions of the Existing Certificate shall remain in full force and effect.
[ Remainder of page
intentionally left blank. ]
IN WITNESS WHEREOF, the Corporation has caused this Third Certificate of Amendment of the
Second Amended and Restated Certificate of Incorporation to be signed by its authorized officer as of the 17th day of March, 2026.
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KARDIGAN, INC. |
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/s/ Tassos Gianakakos
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Tassos Gianakakos |
Chief Executive Officer |
S IGNATURE P AGE TO T HIRD C ERTIFICATE OF
A MENDMENT OF
S ECOND A MENDED AND R ESTATED
C ERTIFICATE OF I NCORPORATION OF K ARDIGAN ,
I NC .
FOURTH CERTIFICATE OF AMENDMENT
TO
SECOND AMENDED AND
RESTATED
CERTIFICATE OF INCORPORATION
OF
KARDIGAN, INC.
Kardigan, Inc. (the “ Corporation ”), a corporation organized and existing under the General Corporation Law of the
State of Delaware (the “ General Corporation Law ”), does hereby certify that:
1. That the name of the
Corporation is Kardigan, Inc., and that this Corporation was originally incorporated pursuant to the General Corporation Law on August 18, 2023 under the name EnCarda, Inc.
2. That the Second Amended and Restated Certificate of Incorporation of this Corporation was filed with the Secretary of State of the
State of Delaware on September 4, 2025 and amended on October 9, 2025, February 16, 2026, and March 17, 2026 (the “ Existing Certificate ”).
3. That the Board of Directors of this Corporation duly adopted a resolution setting forth a proposed amendment to the Existing
Certificate, and declared said amendment to be advisable, and in the best interests of the Corporation and its stockholders, and authorizing the appropriate officers of Corporation to solicit the consent of the stockholders therefor, which
resolution setting forth the proposed amendment is as follows:
RESOLVED , that the Existing Certificate of the Corporation be
amended as follows:
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1. |
The first paragraph of Article FOURTH of the Existing Certificate is hereby amended and restated in its
entirety to read as herein set forth in full:
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“The total number of shares of all classes of stock which the
Corporation shall have the authority to issue is 90,920,529. The Corporation has two classes of stock, referred to as Common Stock and Preferred Stock. There are 60,933,053 shares of authorized Common Stock, $0.00001 par value per share
(“ Common Stock ”) and 29,987,476 shares of authorized Preferred Stock, $0.00001 par value per share (“ Preferred Stock ”), 17,256,508 of which are hereby designated as “ Series A Preferred Stock ”,
8,950,199 of which are hereby designated as “ Series B Preferred Stock ” and 3,780,769 of which are hereby designated as “ Series B-1 Preferred Stock ”.”
* * *
4. The foregoing amendment was approved by the holders of the requisite number of shares of the Corporation in accordance with
Section 228 of the General Corporation Law.
5. That the Fourth Certificate of Amendment of the Second Amended and Restated
Certificate of Incorporation, which amends the provisions of the Corporation’s Existing Certificate, has been duly adopted in accordance with provisions of Section 242 of the General Corporation Law.
6. All other provisions of the Existing Certificate shall remain in full force and effect.
[ Remainder of page intentionally left blank. ]
IN WITNESS WHEREOF, the Corporation has caused this Fourth Certificate of Amendment of the
Second Amended and Restated Certificate of Incorporation to be signed by its authorized officer as of the 2 nd day of April, 2026.
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KARDIGAN, INC. |
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/s/ Tassos Gianakakos
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Tassos Gianakakos |
Chief Executive Officer |
S IGNATURE P AGE TO F OURTH C ERTIFICATE OF
A MENDMENT OF
S ECOND A MENDED AND R ESTATED
C ERTIFICATE OF I NCORPORATION OF K ARDIGAN ,
I NC .
### EX-3.2 - EX-3.2
EX-3.2
3
d107928dex32.htm
EX-3.2
EX-3.2
Exhibit 3.2
THIRD AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
KARDIGAN, INC.
Kardigan, Inc., a corporation organized and existing under the laws of the State of Delaware (the “Corporation”), hereby
certifies as follows:
1. The name of the Corporation is Kardigan, Inc. The date of the filing of its original Certificate of
Incorporation with the Secretary of State of the State of Delaware was August 18, 2023 (the “Original Certificate”). The name under which the Corporation filed the Original Certificate was EnCarda, Inc.
2. The Original Certificate was amended by that certain Amended and Restated Certificate of Incorporation dated June 6, 2024, (the
“Amended and Restated Certificate”), and further by that certain Second Amended and Restated Certificate of Incorporation dated September 4, 2025, as amended on October 9, 2025 by that certain First Certificate of Amendment to
the Second Amended and Restated Certificate of Incorporation, further amended on February 16, 2026 by that certain Second Certificate of Amendment to the Second Amended and Restated Certificate of Incorporation, further amended on
March 17, 2026 by that certain Third Certificate of Amendment to the Second Amended and Restated Certificate of Incorporation, and further amended on April 2, 2026 by that certain Fourth Certificate of Amendment to the Second Amended and
Restated Certificate of Incorporation (as amended, the “Second Amended and Restated Certificate”). This Third Amended and Restated Certificate of Incorporation (the “Certificate”) amends, restates and integrates the
provisions of the Second Amended and Restated Certificate, and was duly adopted in accordance with the provisions of Sections 228, 242 and 245 of the General Corporation Law of the State of Delaware (the “DGCL”).
3. The text of the Second Amended and Restated Certificate is hereby amended, restated and integrated in its entirety to provide as follows.
ARTICLE I
The name of the
Corporation is Kardigan, Inc.
ARTICLE II
The address of the Corporation’s registered office in the State of Delaware is 1209 Orange Street, in the City of Wilmington, County of
New Castle, 19801. The name of its registered agent at such address is The Corporation Trust Company.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the DGCL.
ARTICLE IV
CAPITAL STOCK
The total number of shares of capital stock which the Corporation shall have authority to issue is Seven Hundred and Ten Million
(710,000,000), of which (i) Seven Hundred Million (700,000,000) shares shall be a class designated as common stock, par value $0.0001 per share (the “Common Stock”), which class of Common Stock shall be subdivided into two series
consisting of (a) Five Hundred Million (500,000,000) shares designated as voting Common Stock (the “Voting Common Stock”) and (b) Two Hundred Million (200,000,000) shares designated as
non-voting Common Stock (the “Non-Voting Common Stock”) and (ii) Ten Million (10,000,000) shares shall be a class designated as undesignated preferred
stock, par value $0.0001 per share (the “Preferred Stock”).
Except as otherwise provided in any certificate of designation of
any series of Preferred Stock, the number of authorized shares of the class of Common Stock or Preferred Stock may be increased or decreased (but not below the number of shares of such class then outstanding) by the requisite vote of the holders of
the outstanding shares of capital stock of the Corporation entitled to vote thereon irrespective of the provisions of Section 242(b)(2) of the DGCL, and no vote of the holders of any of the Common Stock or the Preferred Stock voting separately
as a class shall be required therefor. For the avoidance of doubt, the elimination and reduction of the stockholder voting requirements otherwise applicable under Section 242(b) of the DGCL, as permitted by Section 242(d) of the DGCL,
shall apply to any amendments to the Certificate.
The powers, preferences and rights of, and the qualifications, limitations and
restrictions upon, each class or series of stock shall be determined in accordance with, or as set forth below in, this Article IV.
A. COMMON STOCK
Subject
to all the rights, powers and preferences of the Preferred Stock and except as provided by law or in this Certificate (including any certificate of designation of any series of Preferred Stock):
1. the holders of the Voting Common Stock shall have the exclusive right to vote for the election of directors of the Corporation (the
“Directors”) and on all other matters requiring stockholder action, each outstanding share of Voting Common Stock entitling the holder thereof to one vote on each matter properly submitted to the stockholders of the Corporation for their
vote; provided , however , that, except as otherwise required by law, holders of Voting Common Stock, as such, shall not be entitled to vote on any amendment to this Certificate (including any
2
amendment to a certificate of designation of any series of Preferred Stock) that alters or changes the number of shares, powers, preferences, rights or other terms of one or more outstanding
series of Preferred Stock if the holders of such affected series of Preferred Stock are entitled to vote, either separately or together with the holders of one or more other such series, on such amendment pursuant to this Certificate (including any
certificate of designation of any series of Preferred Stock) or pursuant to the DGCL;
2. the
Non-Voting Common Stock shall be non-voting shares, and the holders thereof shall have no right to vote for the election of Directors or on any other matters requiring
stockholder action, except as required by law;
3. shares of Voting Common Stock and Non-Voting
Common Stock shall be treated equally, identically and ratably, on a per share basis, with respect to any dividends or other distributions of cash, property or shares of capital stock of the Corporation (each, a “Distribution”), as may
be declared and paid or set apart for payment upon the shares of Common Stock out of any assets or funds of the Corporation legally available therefor, when, as and if declared by the Board of Directors of the Corporation (the “Board”)
or any authorized committee thereof; in the event that such Distribution is paid in the form of shares of Common Stock (or rights to acquire, or securities convertible or exchangeable for shares of Common Stock), holders of Voting Common Stock shall
be entitled to receive only shares of Voting Common Stock (or rights to acquire, or securities convertible into or exchangeable for, such shares, as the case may be) and holders of Non-Voting Common Stock
shall be entitled to receive only shares of Non-Voting Common Stock (or rights to acquire, or securities convertible into or exchangeable for, such shares, as the case may be); notwithstanding the foregoing,
the Board may treat the holders of Voting Common Stock or Non-Voting Common Stock differently with respect to Distributions (including by only paying a Distribution on one such class or paying a different or
disparate Distribution to each such class including with respect to the amount of such Distribution payable per share, the form in which such Distribution is payable, the timing of the payment, or otherwise) if such disparate treatment is approved
by (i) a majority of the disinterested directors, as such term is defined in Section 144(e)(4) of the DGCL, then in office, or (ii) any committee of the Board expressly delegated the authority to oversee the treatment of such
distributions);
4. upon the voluntary or involuntary liquidation, dissolution or winding up of the Corporation, the assets of the
Corporation available for distribution to stockholders shall be distributed pro rata to the holders of the Voting Common Stock and Non-Voting Common Stock, treated equally and identically;
5. in connection with any merger or consolidation of the Corporation with or into any other entity or any conversion, domestication, transfer
or continuance of the Corporation, shares of Voting Common Stock and shares of Non-Voting Common Stock shall be treated equally, identically and ratably, on a per share basis, with respect to any consideration
into which such shares are converted or any other consideration paid or otherwise distributed to stockholders of the Corporation in the merger, consolidation, conversion, domestication, transfer or continuance (any such consideration, “Change
of Control Consideration”), unless (i) such consideration consists, in whole or in part, of shares of capital stock of, or other equity interests in, the Corporation or any other corporation, partnership, limited liability company or
other entity, and the powers, designations, preferences and relative, optional or other special rights and qualifications, limitations and restrictions of such shares of capital stock or other equity interests
3
received in respect of the shares of Voting Common Stock and Non-Voting Common Stock differ solely to the extent that the powers, designations, preferences
and relative, optional or other special rights and qualifications, limitations and restrictions of the Voting Common Stock and the Non-Voting Common Stock differ as described in this Article IV , then
the powers, designations, preferences and relative, optional or other special rights and qualifications, limitations and restrictions of such shares of capital stock or other equity interests received in respect of the shares of Voting Common Stock
and Non-Voting Common Stock may differ to the extent that the powers, designations, preferences and relative, optional or other special rights and qualifications, limitations and restrictions of the Voting
Common Stock and the Non-Voting Common Stock differ as provided herein (including, without limitation, with respect to the voting rights and conversion provisions hereof), provided, however, that, if the
holders of any series of Common Stock are granted the right to elect to receive one of two or more alternative forms of consideration, the foregoing provisions shall be deemed satisfied if holders of the other series of Common Stock are granted
corresponding election rights, or (ii) different treatment of the shares of each such series in connection with such merger, consolidation, conversion, domestication, transfer or continuance is approved by the affirmative vote of the holders of
a majority of the outstanding shares of Voting Common Stock; provided further, for the avoidance of doubt, Change of Control Consideration shall not be deemed to include any consideration or other distribution paid to or received by a person who is
a holder of Voting Common Stock and/or Non-Voting Common Stock, as applicable, pursuant to (x) any employment, consulting, severance or other compensatory arrangement (including, without limitation, any
equity-based or cash compensatory award or payment) whether or not entered into in connection with such merger, consolidation, conversion, domestication, transfer or continuance or (y) a negotiated agreement between a holder of Voting Common
Stock and/or Non-Voting Common Stock, as applicable, with any counterparty (or affiliate thereof) to a merger or consolidation wherein such holder is contributing, selling, transferring, exchanging or
otherwise disposing of shares of the Corporation’s capital stock to such counterparty (or affiliate thereof) as part of a “rollover” or similar transaction that is approved by (i) a majority of the disinterested directors, as
such term is defined in Section 144(e)(4) of the DGCL, then in office, or (ii) any committee of the Board expressly delegated the authority to negotiate (or oversee the negotiation of) and to reject such merger or consolidation, and
that is in connection with such merger or consolidation or any such conversion, domestication, transfer or continuance; and
6. Shares of
Voting Common Stock or Non-Voting Common Stock may not be subdivided, combined or reclassified unless the shares of such other series are concurrently therewith proportionately subdivided, combined or
reclassified in a manner that maintains the same proportionate equity ownership among the holders of the outstanding Voting Common Stock and Non-Voting Common Stock on the record date for such subdivision,
combination or reclassification; provided, however, that shares of one such series may be treated differently if such treatment is approved by the affirmative vote of the holders of a majority of the outstanding shares of Voting Common Stock.
4
B. CONVERSION OF NON-VOTING COMMON STOCK
1. Each holder of shares of Non-Voting Common Stock shall have the right to convert each share of Non-Voting Common Stock held by such holder into one share of Voting Common Stock at such holder’s election, which shall be made upon written notice to the Corporation delivered, provided that, the shares of Non-Voting Common Stock may only be converted into shares of Voting Common Stock during such time or times as immediately prior to or as a result of such conversion would not result in the holder(s) thereof
beneficially owning (for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the “Exchange Act”)), when aggregated with affiliates with
whom such holder is required to aggregate beneficial ownership for purposes of Section 13(d) of the Exchange Act, in excess of the Beneficial Ownership Limitation. The “Beneficial Ownership Limitation” means initially 9.99% of any
class of securities of the Corporation registered under the Exchange Act, which percentage may be increased or decreased by a holder of outstanding shares of Non-Voting Common Stock to such other percentage
not in excess of 19.99% at the time of purchase of shares of Non-Voting Common Stock without advance notice to the Corporation or, after the time of purchase, as such holder may designate in writing upon 61
days’ notice to the Corporation, provided, however, that, in each case, such increase or decrease shall only be applicable to such holder.
2. Before any holder of Non-Voting Common Stock shall be entitled to convert any shares of Non-Voting Common Stock into shares of Voting Common Stock pursuant to Subsection 1 of Part B of Article IV, such holder shall surrender the certificate or certificates therefor (if any), duly endorsed, at the
principal corporate office of the Corporation or of any transfer agent of the Corporation, and shall provide written notice to the Corporation and any such transfer agent, of such conversion election and shall state therein the number of shares of Non-Voting Common Stock elected to be converted, the name or names (i) in which the certificate or certificates representing the shares of Voting Common Stock into which the shares of Non-Voting Common Stock are so converted are to be issued (if such shares of Voting Common Stock will be certificated) or (ii) in which such shares of Voting Common Stock are to be registered in book-entry form
(if such shares of Voting Common Stock are uncertificated). If the shares of Voting Common Stock into which the shares of Non-Voting Common Stock are to be converted are to be issued in a name or names other
than the name of the holder of the shares of Non-Voting Common Stock being converted, such notice shall be accompanied by a written instrument or instruments of transfer, in form satisfactory to the
Corporation, duly executed by the holder. The Corporation shall, as soon as practicable thereafter, issue and deliver to such holder, or to the nominee or nominees of such holder, (i) a certificate or certificates representing the number of
shares of Voting Common Stock to which such holder shall be entitled upon such conversion (if such shares of Voting Common Stock are certificated) or shall register such shares of Voting Common Stock in book-entry form (if such shares of Voting
Common Stock are uncertificated) and (ii) if applicable, a certificate or certificates representing the number of shares of Non-Voting Common Stock for the number of shares (including any fractional
share) of Non-Voting Common Stock represented by the certificate or certificates delivered to the Corporation for conversion but otherwise not elected to be converted pursuant to the written election (if such
shares of Non-Voting Common Stock are certificated), or shall register such shares of Non-Voting Common Stock in book-entry form (if such shares of Non-Voting Common Stock are uncertificated). Such conversion shall be deemed to be effective immediately prior to the close of business (i) with respect to certificated shares, on the date of such surrender of
the certificate or certificates representing the shares of Non-Voting Common Stock to be converted or (ii) with respect to shares that are uncertificated, immediately prior to the close of business on the
date that the holder delivers notice of such conversion election as required by this Subsection 2(a) of
5
Part B of Article IV to the Corporation and the Corporation’s transfer agent, and, in each case, the shares of Voting Common Stock issuable upon such conversion shall be deemed to be
outstanding as of such time, and the person or persons entitled to receive the shares of Voting Common Stock issuable upon such conversion shall be deemed to be the record holder or holders of such shares of Voting Common Stock as of such time.
Notwithstanding anything herein to the contrary, shares of Non-Voting Common Stock represented by a lost, stolen or destroyed stock certificate may be converted pursuant to Subsection 1 of Part B of Article IV
if the holder thereof notifies the Corporation or its transfer agent that such certificate has been lost, stolen or destroyed and provides an affidavit of that fact acceptable to the Corporation and executes an agreement acceptable to the
Corporation to indemnify the Corporation from any loss incurred by it in connection with such certificate.
3. The one-to-one conversion ratio for the conversion of the Non-Voting Common Stock into Voting Common Stock shall in all events be equitably
adjusted in the event of any reclassification of the Voting Common Stock or Non-Voting Common Stock (including any split or combination thereof), any Distribution on the Voting Common Stock or Non-Voting Common Stock, or in the event of any merger or consolidation of the Corporation, any recapitalization or reorganization of the Corporation, or any other similar event.
4. The Corporation shall at all times reserve and keep available out of its authorized but unissued shares of Voting Common Stock, solely for
the purpose of effecting the conversion of the shares of Non-Voting Common Stock, such number of its shares of Voting Common Stock as shall from time to time be sufficient to effect the conversion of all
outstanding shares of Non-Voting Common Stock.
5. If any shares of
Non-Voting Common Stock shall be converted pursuant to this Article IV.B., the shares so converted shall be retired and restored to the status of authorized but unissued shares of Non-Voting Common Stock.
C. PREFERRED STOCK
The Board of Directors or any authorized committee thereof is expressly authorized to provide by resolution or resolutions for, out of the
unissued shares of Preferred Stock, the issuance of the shares of Preferred Stock in one or more series of such stock, and by filing a certificate of designation pursuant to applicable law of the State of Delaware, to establish or change from time
to time the number of shares of each such series, and to fix the designations, powers, including voting powers, full or limited, or no voting powers, preferences and the relative, participating, optional or other special rights of the shares of each
series and any qualifications, limitations and restrictions thereof, all to the fullest extent now or hereafter permitted by the DGCL. The powers, preferences and relative, participating, optional and other special rights of each such series of
Preferred Stock, and the qualifications, limitations or restrictions thereof, if any, may differ from those of any and all other series at any time outstanding. Without limiting the generality of the foregoing, the resolution or resolutions
providing for the issuance of any series of Preferred Stock may provide that such series shall be superior or rank equally or be junior to any other series of Preferred Stock to the extent permitted by law.
6
ARTICLE V
STOCKHOLDER ACTION
1.
Action without Meeting . Any action required or permitted to be taken by the stockholders of the Corporation at any annual or special meeting of stockholders of the Corporation must be effected at a duly called annual or special meeting of
stockholders and may not be taken or effected by a consent of stockholders in lieu thereof; provided, however , that any action required or permitted to be taken, to the extent expressly permitted by the certificate of designation relating to
one or more series of Preferred Stock, by the holders of such series of Preferred Stock, voting separately as a series or separately as a class with one or more other such series, may be taken by consent in lieu of a meeting, without prior notice
and without a vote, if a consent or consents, setting forth the action so taken, shall be signed by the holders of outstanding shares of the relevant series of Preferred Stock having not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation in accordance with applicable law.
2. Special Meetings . Except as otherwise required by statute and subject to the rights, if any, of the holders of shares of any series
of Preferred Stock, special meetings of the stockholders of the Corporation may be called only by the Board of Directors and may not be called by any other person or persons. Only those matters set forth in the notice of the special meeting may be
considered or acted upon at a special meeting of stockholders of the Corporation.
ARTICLE VI
DIRECTORS
1.
General . The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors except as otherwise provided herein or required by law.
2. Number of Directors; Term of Office . Except as otherwise provided for or fixed pursuant to the provisions of Article IV (including
any certificate of designation with respect to any series of Preferred Stock) and this Article VI relating to the rights of the holders of any series of Preferred Stock to elect additional Directors, the number of directors of the Corporation (the
“Directors”) shall be fixed solely and exclusively by resolution duly adopted from time to time by the Board of Directors. The Directors, other than those who may be elected by the holders of any series of Preferred Stock, shall be
classified, with respect to the term for which they severally hold office, into three classes. The term of office of the initial Class I Directors shall expire at the first annual meeting of stockholders following the closing of the
Corporation’s sale of a class of its capital stock to the public pursuant to a registration statement on Form S-1 under the Securities Act (the “IPO Time”). The term of office of the initial
Class II Directors shall expire at the second annual meeting of stockholders following the IPO Time. The term of office of the initial Class III Directors shall expire at the third annual meeting of stockholders following the IPO Time. The
Board of Directors is authorized to assign members of the Board of Directors
7
already in office to such classes at the time the classification of the Board of Directors becomes effective. At each annual meeting of stockholders, Directors elected to succeed those Directors
whose terms expire shall be elected for a term of office to expire at the third succeeding annual meeting of stockholders after their election. Notwithstanding the foregoing, the Directors elected to each class shall hold office until their
successors are duly elected and qualified or until their earlier resignation, death, disqualification or removal. No decrease in the number of Directors shall shorten the term of any incumbent Director. There shall be no cumulative voting in the
election of Directors. Election of Directors need not be by written ballot unless the Bylaws of the Corporation so provide.
Notwithstanding the foregoing, whenever, pursuant to the provisions of Article IV of this Certificate, the holders of any one or more
series of Preferred Stock shall have the right, voting separately as a series or together with holders of other such series, to elect additional Directors, the election, term of office, filling of vacancies and other features of such directorships
shall be governed by the terms of this Certificate, including any certificate of designation applicable to such series of Preferred Stock. During any period when the holders of any series of Preferred Stock, voting separately as a series or together
with one or more series, have the right to elect additional Directors, then upon commencement and for the duration of the period during which such right continues: (i) the then otherwise total authorized number of Directors shall automatically
be increased by such specified number of Directors, and the holders of such Preferred Stock shall be entitled to elect the additional Directors so provided for or fixed pursuant to said provisions, and (ii) each such additional Director shall
serve until such Director’s successor shall have been duly elected and qualified, or until such Director’s right to hold such office terminates pursuant to said provisions, whichever occurs earlier, subject to such Director’s
earlier death, resignation, retirement, disqualification or removal. Notwithstanding any other provision of this Certificate of Incorporation, except as otherwise provided by the Board in the resolution or resolutions establishing such series,
whenever the holders of any series of Preferred Stock having such right to elect additional Directors are divested of such right pursuant to the provisions of such stock, the terms of office of all such additional Directors elected by the holders of
such stock, or elected to fill any vacancies resulting from the death, resignation, disqualification or removal of such additional Directors, shall forthwith terminate (in which case each such Director shall thereupon cease to be qualified as, and
shall cease to be, a Director) and the total authorized number of Directors shall automatically be reduced accordingly.
3. Vacancies
and Newly Created Directorships . Subject to the rights, if any, of the holders of any series of Preferred Stock to elect Directors and to fill vacancies in the Board of Directors and newly created directorships relating thereto, any and all
vacancies and newly created directorships in the Board of Directors, however occurring, including, without limitation, by reason of an increase in the size of the Board of Directors, or the death, resignation, disqualification or removal of a
Director, shall be filled solely and exclusively by the affirmative vote of a majority of the remaining Directors then in office, even if less than a quorum of the Board of Directors, or by a sole remaining Director, and not by the stockholders. Any
Director appointed in accordance with the preceding sentence shall hold office for the remainder of the full term of the class of Directors in which the new directorship was created or the vacancy occurred and until such Director’s successor
shall have been duly elected and qualified or until such Director’s earlier resignation, disqualification, death or removal. Subject to the rights, if any, of the holders of any series of Preferred Stock to elect Directors, when the number of
Directors is increased or decreased, the Board of Directors shall, subject to Article VI.3 hereof, determine the class or classes to which the increased or decreased number of Directors shall be apportioned.
8
4. Removal . Subject to the rights, if any, of any series of Preferred Stock to elect
Directors and to remove any Director whom the holders of any such series have the right to elect, any Director may be removed from office (i) only for cause and (ii) only by the affirmative vote of the holders of not less than two-thirds (2/3) of the voting power of the outstanding shares of capital stock entitled to vote thereon.
ARTICLE VII
LIMITATION OF
LIABILITY
To the fullest extent permitted by the DGCL, as the same exists or may hereafter be amended from time to time, a Director
or officer of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of such Director’s fiduciary duty as a Director or officer of the Corporation. If the DGCL is amended after the
effective date of this Certificate to authorize corporate action further eliminating or limiting the personal liability of Directors or officers of the Corporation, then the liability of a Director or officer of the Corporation shall be eliminated
or limited to the fullest extent permitted by the DGCL, as so amended.
Any amendment, repeal or modification of this Article VII
shall not adversely affect any right or protection of any Director or officer of the Corporation existing at the time of such amendment, repeal or modification with respect to any acts or omissions by such Director or officer occurring before such
amendment, repeal or modification.
ARTICLE VIII
AMENDMENT OF BYLAWS
1.
Amendment by Directors . Except as otherwise provided by law, the Board of Directors shall have the power to alter, amend or repeal the Bylaws of the Corporation or to adopt new bylaws.
2. Amendment by Stockholders . Except as otherwise provided therein, the Bylaws of the Corporation may be amended or repealed by the
stockholders by the affirmative vote of the holders of at least two-thirds (2/3) of the voting power of the outstanding shares of capital stock entitled to vote on such amendment or repeal, voting together as
a single class; provided, however, that if the Board of Directors recommends that stockholders approve such amendment or repeal, such amendment or repeal by the stockholders shall only require the affirmative vote of the holders of a majority of the
voting power of the outstanding shares of capital stock entitled to vote on such amendment or repeal, voting together as a single class.
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ARTICLE IX
AMENDMENT OF CERTIFICATE OF INCORPORATION
The Corporation reserves the right to amend or repeal this Certificate in the manner now or hereafter prescribed by statute and this
Certificate, and all rights conferred upon stockholders herein are granted subject to this reservation. For the avoidance of doubt, the provisions of Sections 242(d)(1) and (d)(2) of the DGCL shall apply to the Corporation.
[End of Text]
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THIS THIRD AMENDED AND RESTATED CERTIFICATE OF INCORPORATION is executed as of this [____],
2026.
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KARDIGAN, INC. |
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By: |
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Name: |
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Tassos Gianakakos |
Title: |
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Chief Executive Officer |
### EX-3.3 - EX-3.3
EX-3.3
4
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EX-3.3
EX-3.3
Exhibit 3.3
ENCARDA, INC.
BYLAWS
Adopted August 18, 2023
ARTICLE I - STOCKHOLDERS
Section 1 Annual Meeting .
An annual meeting of the stockholders, for the election of directors to succeed those whose terms expire and for the transaction of such other
business as may properly come before the meeting, shall be held at such place, on such date, and at such time as the board of directors (the “ Board of Directors ”) of EnCarda, Inc. (the “ Corporation ”) shall each
year fix, which date shall be within 13 months of the last annual meeting of stockholders or, if no such meeting has been held, the date of incorporation.
Section 2 Special Meetings .
Special meetings of the stockholders, for any purpose or purposes prescribed in the notice of the meeting, may be called by the Board of
Directors or the Chief Executive Officer and shall be held at such place, on such date, and at such time as they or he or she shall fix.
Section 3 Notice of Meetings .
Notice of the place, if any, date, and time of all meetings of the stockholders, the means of remote communications, if any, by which
stockholders and proxyholders may be deemed to be present in person and vote at such meeting, and the record date for determining the stockholders entitled to vote at the meeting, if such date is different from the record date for determining
stockholders entitled to notice of the meeting, shall be given, not less than 10 nor more than 60 days before the date on which the meeting is to be held, to each stockholder entitled to vote at such meeting as of the record date for determining the
stockholders entitled to notice of the meeting, except as otherwise provided herein or required by law (meaning, here and hereinafter, as required from time to time by the Delaware General Corporation Law or the Certificate of Incorporation of the
Corporation).
When a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and
place, if any, thereof, and the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken;
provided , however , that if the date of any adjourned meeting is more than 30 days after the date for which the meeting was originally noticed, notice of the place, if any, date, and time of the adjourned meeting and the means of remote
communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such adjourned meeting, shall be given to each stockholder in conformity herewith. If after the adjournment a new record date for
stockholders entitled to vote is fixed for the adjourned meeting, the Board of Directors shall fix a new record date for notice of such adjourned meeting, which record date shall not precede the date upon which the resolution fixing the record date
is
adopted by the Board of Directors and, except as otherwise required by law, shall not be less than 10 nor
more than 60 days before the date of such adjourned meeting, and shall give notice of the adjourned meeting to each stockholder of record entitled to vote at such adjourned meeting as of the record date fixed for notice of such adjourned meeting. At
any adjourned meeting, any business may be transacted which might have been transacted at the original meeting.
Section 4
Quorum .
At any meeting of the stockholders, the holders of a majority of the voting power of all of the shares of stock entitled
to vote at the meeting, present in person or by proxy, shall constitute a quorum for all purposes, unless or except to the extent that the presence of a larger number may be required by law. Where a separate vote by a class or classes or series is
required, a majority of the voting power of the shares of such class or classes or series present in person or represented by proxy shall constitute a quorum entitled to take action with respect to that vote on that matter. The stockholders present
at a duly constituted meeting may continue to transact business until adjournment notwithstanding the withdrawal of enough stockholders to reduce the voting shares below a quorum.
If a quorum shall fail to attend any meeting, the chairman of the meeting or the holders of a majority of the shares of stock entitled to vote
who are present, in person or by proxy, may adjourn the meeting to another place, if any, date, or time.
Section 5
Organization .
Such person as the Board of Directors may have designated or, in the absence of such a person, the President or
Chief Executive Officer of the Corporation or, in his or her absence, such person as may be chosen by the holders of a majority of the voting power of the shares entitled to vote who are present, in person or by proxy, shall call to order any
meeting of the stockholders and act as chairman of the meeting. In the absence of the Secretary of the Corporation, the secretary of the meeting shall be such person as the chairman of the meeting appoints.
Section 6 Conduct of Business .
The chairman of any meeting of stockholders shall determine the order of business and the procedure at the meeting, including such regulation
of the manner of voting and the conduct of discussion as seem to him or her in order. The date and time of the opening and closing of the polls for each matter upon which the stockholders will vote at the meeting shall be announced at the meeting.
Section 7 Proxies and Voting .
At any meeting of the stockholders, every stockholder entitled to vote may vote in person or by proxy authorized by an instrument in writing
or by a transmission permitted by law filed in accordance with the procedure established for the meeting. Any copy, facsimile communication or other reliable reproduction of the writing or transmission created pursuant to this paragraph may be
substituted or used in lieu of the original writing or transmission for any and all purposes for which the original writing or transmission could be used, provided that such copy, facsimile communication or other reproduction shall be
a complete reproduction of the entire original writing or transmission.
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The Corporation may, and to the extent required by law, shall, in advance of any meeting of
stockholders, appoint one or more inspectors to act at the meeting and make a written report thereof. The Corporation may designate one or more alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to
act at a meeting of stockholders, the person presiding at the meeting may, and to the extent required by law, shall, appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall
take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. Every vote taken by ballots shall be counted by an inspector or inspectors appointed by the chairman of the
meeting.
All elections shall be determined by a plurality of the votes cast, and except as otherwise required by law, all other matters
shall be determined by a majority of the votes cast affirmatively or negatively.
Section 8 Stock List .
The officer who has charge of the stock ledger of the Corporation shall, at least 10 days before every meeting of stockholders, prepare and
make a complete list of stockholders entitled to vote at any meeting of stockholders, provided , however , if the record date for determining the stockholders entitled to vote is less than 10 days before the meeting date, the list shall
reflect the stockholders entitled to vote as of the 10th day before the meeting date, arranged in alphabetical order and showing the address of each such stockholder and the number of shares registered in his or her name. Such list shall be open to
the examination of any stockholder for a period of at least 10 days prior to the meeting in the manner provided by law.
A stock list
shall also be open to the examination of any stockholder during the whole time of the meeting as provided by law. This list shall presumptively determine (a) the identity of the stockholders entitled to examine such stock list and to vote at
the meeting and (b) the number of shares held by each of them.
Section 9 Consent of Stockholders in Lieu of
Meeting .
Any action required to be taken at any annual or special meeting of stockholders of the Corporation, or any action which may
be taken at any annual or special meeting of the stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation by
delivery to its registered office in Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the
Corporation’s registered office shall be made by hand or by certified or registered mail, return receipt requested.
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Every written consent shall bear the date of signature of each stockholder who signs the
consent, and no written consent shall be effective to take the corporate action referred to therein unless, within 60 days of the earliest dated consent delivered to the Corporation, a written consent or consents signed by a sufficient number of
holders to take action are delivered to the Corporation in the manner prescribed in the first paragraph of this Section. A telegram, cablegram or other electronic transmission consenting to an action to be taken and transmitted by a stockholder or
proxyholder, or by a person or persons authorized to act for a stockholder or proxyholder, shall be deemed to be written, signed and dated for the purposes of this Section to the extent permitted by law. Any such consent shall be delivered in
accordance with Section 228(d)(1) of the Delaware General Corporation Law.
Any copy, facsimile or other reliable reproduction of a
consent in writing may be substituted or used in lieu of the original writing for any and all purposes for which the original writing could be used, provided that such copy, facsimile or other reproduction shall be a complete reproduction of
the entire original writing.
ARTICLE II - BOARD OF DIRECTORS
Section 1 Number and Term of Office .
The number of directors who shall constitute the whole Board of Directors shall be such number as the Board of Directors shall from time to
time have designated. Each director shall be elected for a term of one (1) year and until his or her successor is elected and qualified, except as otherwise provided herein or required by law.
Whenever the authorized number of directors is increased between annual meetings of the stockholders, a majority of the directors then in
office shall have the power to elect such new directors for the balance of a term and until their successors are elected and qualified. Any decrease in the authorized number of directors shall not become effective until the expiration of the term of
the directors then in office unless, at the time of such decrease, there shall be vacancies on the board which are being eliminated by the decrease.
Section 2 Removal of Directors; Resignation Unless otherwise provided by the Certificate of Incorporation or these Bylaws,
any director or the entire Board of Directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of directors. Any director may resign at any time upon notice given in writing or by
electronic transmission to the Corporation. Such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the happening of some other event.
Section 3 Vacancies . Unless otherwise provided in the Corporation’s Certificate of Incorporation, as it may be
amended, if the office of any director becomes vacant by reason of death, resignation, disqualification, removal or other cause, a majority of the directors remaining in office, although less than a quorum, may elect a successor for the unexpired
term and until his or her successor is elected and qualified. Unless otherwise provided in the Corporation’s Certificate of Incorporation, as it may be amended, vacancies and newly created directorships resulting from any increase in the
authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their
successors are duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute.
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Section 4 Regular Meetings . Regular meetings of the Board of Directors shall be
held at such place or places, on such date or dates, and at such time or times as shall have been established by the Board of Directors and publicized among all directors. A notice of each regular meeting shall not be required.
Section 5 Special Meetings . Special meetings of the Board of Directors may be called by
one-third of the directors then in office (rounded up to the nearest whole number) or by the President and shall be held at such place, on such date, and at such time as they or he or she shall fix. Notice of
the place, date, and time of each such special meeting shall be given to each director by whom it is not waived by mailing written notice not less than five days before the meeting or by telegraphing or telexing or by facsimile or electronic
transmission of the same not less than 24 hours before the meeting. Unless otherwise indicated in the notice thereof, any and all business may be transacted at a special meeting. A meeting may be held at any time without notice if all the directors
are present (except as otherwise provided by law) or if those not present waive notice of the meeting in writing, either before or after such meeting.
Section 6 Quorum . At any meeting of the Board of Directors, the greater of (a) a majority of the directors then in office at
the time quorum is to be determined and (b) one-third of the total number of directors fixed pursuant to Section 1 of Article II of these Bylaws shall constitute a quorum for the transaction of
business. Less than a quorum may adjourn any meeting from time to time, and the meeting may be held as adjourned without further notice.
Section 7 Participation in Meetings By Conference Telephone . Members of the Board of Directors, or of any committee thereof, may
participate in a meeting of such Board of Directors or committee by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and such participation shall
constitute presence in person at such meeting.
Section 8 Conduct of Business . At any meeting of the Board of Directors,
business shall be transacted in such order and manner as the Board of Directors may from time to time determine, and all matters shall be determined by the vote of a majority of the directors present, except as otherwise provided herein or required
by law. Action may be taken by the Board of Directors without a meeting if all members thereof consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the
minutes of proceedings of the Board of Directors. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.
Section 9 Compensation of Directors . Directors, as such, may receive, pursuant to resolution of the Board of Directors, fixed fees
and other compensation for their services as directors, including, without limitation, their services as members of committees of the Board of Directors.
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ARTICLE III - COMMITTEES
Section 1 Committees of the Board of Directors .
The Board of Directors may from time to time designate committees of the Board of Directors, with such lawfully delegable powers and duties as
it thereby confers, to serve at the pleasure of the Board of Directors and shall, for those committees and any others provided for herein, elect a director or directors to serve as the member or members, designating, if it desires, other directors
as alternate members who may replace any absent or disqualified member at any meeting of the applicable committee. In the absence or disqualification of any member of any committee and any alternate member in his or her place, the member or members
of the committee present at the meeting and not disqualified from voting, whether or not he or she or they constitute a quorum, may by unanimous vote appoint another member of the Board of Directors to act at the meeting in the place of the absent
or disqualified member.
Section 2 Conduct of Business .
Each committee may determine the procedural rules for meeting and conducting its business and shall act in accordance therewith, except as
otherwise provided herein or required by law. Adequate provision shall be made for notice to members of all meetings; one-third of the members shall constitute a quorum unless the committee shall consist of
one or two members, in which event one member shall constitute a quorum; and all matters shall be determined by a majority vote of the members present. Action may be taken by any committee without a meeting if all members thereof consent thereto in
writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of the proceedings of such committee. Such filing shall be in paper form if the minutes are maintained in paper
form and shall be in electronic form if the minutes are maintained in electronic form.
ARTICLE IV
- OFFICERS
Section 1 Generally .
The officers of the Corporation will be chosen by the Board of Directors and will consist of a President, a Secretary, a Treasurer and such
other officers as may from time to time be appointed by the Board of Directors. Officers shall be elected by the Board of Directors, which shall consider that subject at its first meeting after every annual meeting of stockholders. Each officer
shall hold office until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any number of offices may be held by the same person.
Subject to any limitations which may be set forth in a resolution of the Board of Directors, all deeds, leases, transfers, contracts, bonds,
notes and other obligations to be entered into by the Corporation in the ordinary course of its business without director action may be executed on behalf of the Corporation by a President or by any other officer, employee or agent of the
Corporation as the Board of Directors may authorize.
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Section 2 President .
The President shall be the Chief Executive Officer of the Corporation. Subject to the provisions of these Bylaws and to the direction of the
Board of Directors, he or she shall have the responsibility for the general management and control of the business and affairs of the Corporation and shall perform all duties and have all powers which are commonly incident to the office of chief
executive or which are delegated to him or her by the Board of Directors. He or she shall have power to sign all stock certificates, contracts and other instruments of the Corporation which are authorized and shall have general supervision and
direction of all of the other officers, employees and agents of the Corporation.
Section 3 Vice President .
Each Vice President shall have such powers and duties as may be delegated to him or her by the Board of Directors. One Vice President shall be
designated by the Board of Directors to perform the duties and exercise the powers of the President in the event of the President’s absence or disability.
Section 4 Treasurer .
The Treasurer shall have the responsibility for maintaining the financial records of the Corporation. He or she shall make such disbursements
of the funds of the Corporation as are authorized and shall render from time to time an account of all such transactions and of the financial condition of the Corporation. The Treasurer shall also perform such other duties as the Board of Directors
may from time to time prescribe.
Section 5 Secretary .
The Secretary shall issue all authorized notices for, and shall keep minutes of, all meetings of the stockholders and the Board of Directors.
He or she shall have charge of the corporate books and shall perform such other duties as the Board of Directors may from time to time prescribe.
Section 6 Chairman of the Board .
Unless otherwise provided by the Board of Directors, the Chairman of the Board of Directors, if one is elected, shall preside, when present,
at all meetings of the stockholders and the Board of Directors. The Chairman of the Board shall have such other powers and shall perform such duties as the Board of Directors may from time to time designate.
Section 7 Delegation of Authority .
The Board of Directors may from time to time delegate the powers or duties of any officer to any other officers or agents, notwithstanding any
provision hereof.
Section 8 Removal .
Any officer of the Corporation may be removed at any time, with or without cause, by the Board of Directors.
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Section 9 Action with Respect to Securities of Other Corporations .
Unless otherwise directed by the Board of Directors, the President or any officer of the Corporation authorized by the President shall have
power to vote and otherwise act on behalf of the Corporation, in person or by proxy, at any meeting of stockholders of or with respect to any action of stockholders of any other corporation in which this Corporation may hold securities and otherwise
to exercise any and all rights and powers which this Corporation may possess by reason of its ownership of securities in such other corporation.
ARTICLE V - STOCK
Section 1 Certificates of Stock .
The shares of the Corporation shall be represented by certificates, provided that the Board may provide by resolution or resolutions
that some or all of any or all classes or series of its stock shall be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the Corporation. Each holder of stock
represented by certificates shall be entitled to a certificate signed by, or in the name of the Corporation, by any two of the President, a Vice President, the Secretary, an Assistant Secretary, the Treasurer, an Assistant Treasurer or any other
authorized officers of the Corporation, certifying the number of shares owned by him or her. Any or all of the signatures on the certificate may be by facsimile.
Section 2 Transfers of Stock .
Transfers of stock shall be made only upon the transfer books of the Corporation kept at an office of the Corporation or by transfer agents
designated to transfer shares of the stock of the Corporation. Except where a certificate is issued in accordance with Section 4 of Article V of these Bylaws, an outstanding certificate, if one has been issued, for the number
of shares involved shall be surrendered for cancellation before a new certificate, if any, is issued therefor.
Section 3 Record
Date .
In order that the Corporation may determine the stockholders entitled to notice of any meeting of stockholders or any
adjournment thereof, the Board of Directors may, except as otherwise required by law, fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which
record date shall not be less than 10 nor more than 60 days before the date of such meeting. If the Board of Directors so fixes a date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting unless
the Board of Directors determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination. If no record date is fixed by the Board of Directors, the record date
for determining stockholders entitled to notice of and to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given or, if notice is waived, at the close of business on the day
next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided , however , that the
Board of Directors may fix a new record date for determination of stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the same or an
earlier date as that fixed for determination of stockholders entitled to vote in accordance with the foregoing provisions of this Section 3 at the adjourned meeting.
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In order that the Corporation may determine the stockholders entitled to receive payment of
any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may
fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than 60 days prior to such action. If no record date is fixed, the record date for
determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.
In order that the Corporation may determine the stockholders entitled to consent to corporate action without a meeting, (including by
telegram, cablegram or other electronic transmission as permitted by law), the Board of Directors may fix a record date, which shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and
which record date shall be not more than 10 days after the date upon which the resolution fixing the record date is adopted. If no record date has been fixed by the Board of Directors and no prior action by the Board of Directors is required by the
Delaware General Corporation Law, the record date shall be the first date on which a consent setting forth the action taken or proposed to be taken is delivered to the Corporation in the manner prescribed by Section 9 of
Article I of these Bylaws. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by the Delaware General Corporation Law with respect to the proposed action by
consent of the stockholders without a meeting, the record date for determining stockholders entitled to consent to corporate action without a meeting shall be at the close of business on the day on which the Board of Directors adopts the resolution
taking such prior action.
Section 4 Lost, Stolen or Destroyed Certificates .
In the event of the loss, theft or destruction of any certificate of stock, another may be issued in its place pursuant to such regulations as
the Board of Directors may establish concerning proof of such loss, theft or destruction and concerning the giving of a satisfactory bond or bonds of indemnity.
Section 5 Regulations .
The issue, transfer, conversion and registration of certificates of stock shall be governed by such other regulations as the Board of
Directors may establish.
ARTICLE VI - NOTICES
Section 1 Notices .
If mailed, notice to stockholders shall be deemed given when deposited in the mail, postage prepaid, directed to the stockholder at such
stockholder’s address as it appears on the records of the Corporation. Without limiting the manner by which notice otherwise may be given effectively to stockholders, any notice to stockholders may be given by electronic transmission in the
manner provided in Section 232 of the Delaware General Corporation Law.
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Section 2 Waivers .
A written waiver of any notice, signed by a stockholder or director, or waiver by electronic transmission by such person, whether given before
or after the time of the event for which notice is to be given, shall be deemed equivalent to the notice required to be given to such person. Neither the business nor the purpose of any meeting need be specified in such a waiver. Attendance of a
person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not
lawfully called or convened.
ARTICLE VII - MISCELLANEOUS
Section 1 Facsimile Signatures .
In addition to the provisions for use of facsimile signatures elsewhere specifically authorized in these Bylaws, facsimile signatures of any
officer or officers of the Corporation may be used whenever and as authorized by the Board of Directors or a committee thereof.
Section 2 Corporate Seal .
The Board of Directors may provide a suitable seal, containing the name of the Corporation, which seal shall be in the charge of the
Secretary. If and when so directed by the Board of Directors or a committee thereof, duplicates of the seal may be kept and used by the Treasurer or by an Assistant Secretary or Assistant Treasurer.
Section 3 Reliance upon Books, Reports and Records .
Each director, each member of any committee designated by the Board of Directors, and each officer of the Corporation shall, in the
performance of his or her duties, be fully protected in relying in good faith upon the books of account or other records of the Corporation and upon such information, opinions, reports or statements presented to the Corporation by any of its
officers or employees, or committees of the Board of Directors so designated, or by any other person as to matters which such director or committee member reasonably believes are within such other person’s professional or expert competence and
who has been selected with reasonable care by or on behalf of the Corporation.
Section 4 Fiscal Year .
The fiscal year of the Corporation shall be as fixed by the Board of Directors.
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Section 5 Offices .
The Corporation may also have offices at such other places both within and without the State of Delaware as the Board of Directors may from
time to time determine or the business of the Corporation may require.
Section 6 Records and Reports .
The application and requirements of Section 1501 of the California General Corporation Law are hereby expressly waived to the fullest
extent permitted thereunder.
Section 7 Time Periods .
In applying any provision of these Bylaws which requires that an act be done or not be done a specified number of days prior to an event or
that an act be done during a period of a specified number of days prior to an event, calendar days shall be used, the day of the doing of the act shall be excluded, and the day of the event shall be included.
ARTICLE VIII - INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1 Right to Indemnification .
Each person who was or is made a party to or is threatened to be made a party to or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (hereinafter a “ proceeding ”), by reason of the fact that he or she is or was a director or an officer of the Corporation or is or was serving at the request of the
Corporation as a director, officer, or trustee of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan (hereinafter an “ indemnitee ”), whether
the basis of such proceeding is alleged action in an official capacity as a director, officer or trustee, or in any other capacity while serving as a director, officer or trustee, shall be indemnified and held harmless by the Corporation to the
fullest extent permitted by Delaware law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such law
permitted the Corporation to provide prior to such amendment) against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered
by such indemnitee in connection therewith; provided , however , that, except as provided in Section 3 of this Article VIII with respect to proceedings to enforce rights to indemnification, the
Corporation shall indemnify any such indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board of Directors.
Section 2 Right to Advancement of Expenses .
In addition to the right to indemnification conferred in Section 1 of this Article VIII , an indemnitee shall
also have the right to be paid by the Corporation the expenses (including attorney’s fees) incurred in defending any such proceeding in advance of its final disposition (hereinafter an “ advancement of expenses ”);
provided , however , that, if the Delaware General Corporation Law requires, an advancement of expenses incurred by an indemnitee in his or her capacity as a director or officer (and not in any other capacity in which service was or is
rendered
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by such indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon delivery to the Corporation of an undertaking (hereinafter an
“ undertaking ”), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (hereinafter a “ final
adjudication ”) that such indemnitee is not entitled to be indemnified for such expenses under this Section 2 or otherwise.
Section 3 Right of Indemnitee to Bring Suit .
If a claim under Section 1 or 2 of this Article VIII is not paid in full by the Corporation within 60
days after a written claim has been received by the Corporation, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be 20 days, the indemnitee may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim. To the fullest extent permitted by law, if successful in whole or in part in any such suit, or in a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of
an undertaking, the indemnitee shall be entitled to be paid also the expense of prosecuting or defending such suit. In (i) any suit brought by the indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the
indemnitee to enforce a right to an advancement of expenses) it shall be a defense that, and (ii) in any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall be
entitled to recover such expenses upon a final adjudication that, the indemnitee has not met any applicable standard for indemnification set forth in the Delaware General Corporation Law. Neither the failure of the Corporation (including its
directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of the indemnitee is proper in the
circumstances because the indemnitee has met the applicable standard of conduct set forth in the Delaware General Corporation Law, nor an actual determination by the Corporation (including its directors who are not parties to such action, a
committee of such directors, independent legal counsel, or its stockholders) that the indemnitee has not met such applicable standard of conduct, shall create a presumption that the indemnitee has not met the applicable standard of conduct or, in
the case of such a suit brought by the indemnitee, be a defense to such suit. In any suit brought by the indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled to be indemnified, or to such advancement of expenses, under this Article VIII or otherwise, shall be on the
Corporation.
Section 4 Non-Exclusivity of Rights .
The rights to indemnification and to the advancement of expenses conferred in this Article VIII shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute, the Corporation’s Certificate of Incorporation, these Bylaws, agreement, vote of stockholders or disinterested directors or otherwise.
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Section 5 Insurance .
The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or
another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the
Delaware General Corporation Law.
Section 6 Inde mnification of Employees and Agents of the Corporation .
The Corporation may, to the extent authorized from time to time by the Board of Directors, grant rights to indemnification and to the
advancement of expenses to any employee or agent of the Corporation to the fullest extent of the provisions of this Article VIII with respect to the indemnification and advancement of expenses of directors and officers of the Corporation.
Section 7 Nature of Rights .
The rights conferred upon indemnitees in this Article VIII shall be contract rights and such rights shall continue as to an indemnitee
who has ceased to be a director, officer or trustee and shall inure to the benefit of such indemnitee’s heirs, executors and administrators. Any amendment, alteration or repeal of this Article VIII that adversely affects any right of an
indemnitee or his, her or its successors shall be prospective only and shall not limit, eliminate, or impair any such right with respect to any proceeding involving any occurrence or alleged occurrence of any action or omission to act that took
place prior to such amendment, alteration or repeal.
ARTICLE IX - AMENDMENTS
These Bylaws may be amended or repealed by the Board of Directors at any meeting or by the stockholders at any meeting.
CERTIFICATE OF SECRETARY OF
ENCARDA, INC.
The
undersigned, Jay Edelberg, hereby certifies that he is the duly elected and acting Secretary of EnCarda, Inc., a Delaware corporation (the “ Corporation ”), and that the Bylaws attached hereto constitute the Bylaws of said
Corporation as duly adopted by Action by Unanimous Written Consent in Lieu of Organizational Meeting by the Board of Directors on August 18, 2023.
IN WITNESS WHEREOF , the undersigned has hereunto subscribed his name this 18th day of August, 2023.
|
/s/ Tassos Anastasios Gianakakos
Tassos Anastasios Gianakakos, Secretary
|
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### EX-3.4 - EX-3.4
EX-3.4
5
d107928dex34.htm
EX-3.4
EX-3.4
Exhibit 3.4
AMENDED AND RESTATED
BYLAWS
OF
KARDIGAN, INC.
(the
“Corporation”)
ARTICLE I
Stockholders
SECTION 1. Annual Meeting . The annual meeting of stockholders (any such meeting being referred to in these Bylaws as an
“Annual Meeting”) shall be held at the hour, date and place within or without the United States that is fixed by or in the manner determined by the Board of Directors and stated in the notice of the meeting, which time, date and place
may subsequently be changed at any time, before or after the notice for such meeting has been sent to the stockholders, by vote of the Board of Directors. The Board of Directors may, in its sole discretion, determine that a meeting of stockholders
shall not be held at any place, but may instead be held solely by means of remote communication as authorized by Section 211(a)(2) of the General Corporation Law of the State of Delaware (the “DGCL”). In the absence of any such
designation or determination, stockholders’ meetings shall be held at the Corporation’s principal executive office. If no Annual Meeting has been held for a period of thirteen (13) months after the Corporation’s last Annual
Meeting, a special meeting in lieu thereof may be held, and such special meeting shall have, for the purposes of these Bylaws or otherwise, all the force and effect of an Annual Meeting. Any and all references hereafter in these Bylaws to an Annual
Meeting or Annual Meetings also shall be deemed to refer to any special meeting(s) in lieu thereof.
SECTION 2. Notice of
Stockholder Business and Nominations .
(a) Annual Meetings of Stockholders .
(1) Nominations of persons for election to the Board of Directors of the Corporation (the “Board of Directors”) and
the proposal of other business to be considered by the stockholders may be brought before an Annual Meeting (i) by or at the direction of the Board of Directors or (ii) by any stockholder of the Corporation who was a stockholder of record
at the time of giving of notice of the Annual Meeting provided for in this Bylaw, who is entitled to vote at the meeting, who is present (in person or by proxy) at the meeting and who complies with the notice procedures set forth in this Bylaw as to
such nomination or business. For the avoidance of doubt, the foregoing clause (ii) shall be the exclusive means for a stockholder to bring nominations or business properly before an Annual Meeting (other than matters properly brought under Rule
14a-8 (or any successor rule) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), and such stockholder must comply with the notice and other procedures set forth in Article
I, Section 2(a)(2), (3) and (4) of this Bylaw to bring such nominations or business properly before an Annual Meeting. In addition to the other requirements set forth in this Bylaw, for any proposal of business to be considered at an
Annual Meeting, it must be a proper subject for action by stockholders of the Corporation under Delaware law.
(2) For nominations or other business to be properly brought before an
Annual Meeting by a stockholder pursuant to clause (ii) of Article I, Section 2(a)(1) of this Bylaw, the stockholder must (i) have given Timely Notice (as defined below) thereof in writing to the Secretary of the Corporation,
(ii) have provided any updates or supplements to such notice at the times and in the forms required by this Bylaw and (iii) together with the beneficial owner(s), if any, on whose behalf the nomination or business proposal is made, have
acted in accordance with the representations set forth in the Solicitation Statement (as defined below) required by this Bylaw. To be timely, a stockholder’s written notice must be received by the Secretary at the principal executive offices
of the Corporation not later than 5:00 p.m. Eastern time on the ninetieth (90th) day nor earlier than 5:00 p.m. Eastern Time on the one hundred twentieth (120th) day prior to the one-year anniversary of the
preceding year’s Annual Meeting; provided, however, that in the event the Annual Meeting is first convened more than thirty (30) days before or more than sixty (60) days after such anniversary date, or if no Annual Meeting was held
in the preceding year, notice by the stockholder to be timely must be received by the Secretary of the Corporation not later than 5:00 p.m. Eastern time on the later of the ninetieth (90th) day prior to the scheduled date of such Annual Meeting or
the tenth (10th) day following the day on which public announcement of the date of such meeting is first made (such notice within such time periods shall be referred to as “Timely Notice”). Notwithstanding anything to the contrary
provided herein, for the first Annual Meeting following the initial public offering of common stock of the Corporation, a stockholder’s notice shall be timely if received by the Secretary at the principal executive offices of the Corporation
not later than 5:00 p.m. Eastern time on the later of the ninetieth (90th) day prior to the scheduled date of such Annual Meeting or the tenth (10th) day following the day on which public announcement of the date of such Annual Meeting is first made
or sent by the Corporation. Such stockholder’s Timely Notice shall set forth or include:
(A) as to each person whom
the stockholder proposes to nominate for election or reelection as a director, (i) the name, age, business address and residence address of the nominee, (ii) the principal occupation or employment of the nominee, (iii) the class and
number of shares of capital stock of the Corporation that are held of record or are beneficially owned by the nominee or its Affiliates or Associates (each as defined below) and any Synthetic Equity Interest (as defined below) held or beneficially
owned by the nominee or its Affiliates or Associates, (iv) a description of all agreements, arrangements or understandings between or among the stockholder and each nominee and any other person or persons (naming such person or persons)
pursuant to which the nominations are to be made by the stockholder or concerning the nominee’s potential service on the Board of Directors, (v) a questionnaire with respect to the background and qualifications of the nominee completed by
the nominee in the
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form provided by the Corporation (which questionnaire shall be provided by the Secretary upon written request of any stockholder of record identified by name within five (5) business days of
such written request), (vi) a representation and agreement in the form provided by the Corporation (which form shall be provided by the Secretary upon written request of any stockholder of record identified by name within five (5) business days
of such written request) that: (a) such proposed nominee is not and will not become party to any agreement, arrangement or understanding with any person or entity as to how such proposed nominee, if elected as a director of the Corporation,
will act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed to the Corporation in the questionnaire described in clause (v) herein; (b) such proposed nominee is not and will not become a party to
any agreement, arrangement or understanding with any person or entity other than the Corporation with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director that has not
been disclosed to the Corporation in the questionnaire described in clause (v) herein; (c) such proposed nominee would, if elected as a director, comply with all applicable rules and regulations of the exchanges upon which shares of the
Corporation’s capital stock trade, each of the Corporation’s corporate governance, ethics, conflict of interest, confidentiality, stock ownership and trading policies and guidelines applicable generally to the Corporation’s
directors and, if elected as a director of the Corporation, such person currently would be in compliance with any such policies and guidelines that have been publicly disclosed; (d) such proposed nominee intends to serve as a director for the
full term for which he or she is to stand for election; and (e) such proposed nominee will promptly provide to the Corporation such other information as it may reasonably request to determine the eligibility of such proposed nominee to serve on
any committee or sub-committee of the Board of Directors under any applicable stock exchange listing requirements or applicable law, or that the Board of Directors reasonably determines could be material to a
reasonable stockholder’s understanding of the background, qualifications, experience, independence, or lack thereof, of such proposed nominee; and (vii) any other information relating to such proposed nominee that is required to be
disclosed in solicitations of proxies for election of directors in an election contest, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act (including, without limitation, such person’s written consent to
being named in the proxy statement as a nominee and to serving as a director if elected);
(B) as to any other business
that the stockholder proposes to bring before the meeting: a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting, the text, if any, of any resolutions or Bylaw amendment
proposed for adoption, and any material interest in such business of each Proposing Person (as defined below);
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(C) (i) the name and address of the stockholder giving the notice, as they
appear on the Corporation’s books, and the names and addresses of the other Proposing Persons (if any) and (ii) as to each Proposing Person, the following information: (a) the class or series and number of all shares of capital stock
of the Corporation that are, directly or indirectly, owned beneficially or of record by such Proposing Person or any of its Affiliates or Associates, including any shares of any class or series of capital stock of the Corporation as to which such
Proposing Person or any of its Affiliates or Associates has a right to acquire beneficial ownership at any time in the future (whether or not such right is exercisable immediately or only after the passage of time or upon the satisfaction of any
conditions or both) pursuant to any agreement, arrangement or understanding (whether or not in writing), (b) all Synthetic Equity Interests (as defined below) in which such Proposing Person or any of its Affiliates or Associates, directly or
indirectly, holds an interest including a description of the material terms of each such Synthetic Equity Interest, including, without limitation, identification of the counterparty to each such Synthetic Equity Interest and disclosure, for each
such Synthetic Equity Interest, as to (1) whether or not such Synthetic Equity Interest conveys any voting rights, directly or indirectly, in such shares to such Proposing Person or any of its Affiliates or Associates and (2) whether or
not such Synthetic Equity Interest is required to be, or is capable of being, settled through delivery of such shares, (c) any proxy (other than a revocable proxy given in response to a public proxy solicitation made pursuant to, and in
accordance with, the Exchange Act), agreement, arrangement, understanding or relationship pursuant to which such Proposing Person or any of its Affiliates or Associates has or shares a right to, directly or indirectly, vote any shares of any class
or series of capital stock of the Corporation, (d) any rights to dividends or other distributions on the shares of any class or series of capital stock of the Corporation, directly or indirectly, owned beneficially by such Proposing Person or
any of its Affiliates or Associates that are separated or separable from the underlying shares of the Corporation, (e) if such Proposing Person is not a natural person, the identity of the natural person or persons responsible for making voting
and investment decisions (including director nominations and any other business that the stockholder proposes to bring before a meeting) on behalf of the Proposing Person (irrespective of whether such person or persons have “beneficial
ownership” for purposes of Rule 13d-3 of the Exchange Act of any securities owned of record or beneficially by the Proposing Person) (such person or persons, the “Responsible Person”), (f)
any pending or threatened litigation in which such Proposing Person or any of its Affiliates or Associates or any Responsible Person is a party involving the Corporation or any of its officers or directors, or any Affiliate of the Corporation, , and
(g) any other information relating to such Proposing Person or any of its Affiliates or Associates that would be required to be disclosed in a proxy statement or other filing required to be made in connection with solicitations of proxies or
consents by such Proposing Person in support of the business proposed to be brought before the meeting pursuant to Section 14(a) of the Exchange Act (the disclosures to be made pursuant to the foregoing clauses (a) through (g) are referred
to, collectively, as
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“Material Ownership Interests”); provided, however, that the Material Ownership Interests shall not include any such disclosures with respect to the ordinary course business
activities of any broker, dealer, commercial bank, trust company or other nominee who is a Proposing Person solely as a result of being the stockholder of record directed to prepare and submit the notice required by these Bylaws on behalf of a
beneficial owner;
(D) (i) a description of all agreements, arrangements or understandings to which any Proposing Person or
any of its Affiliates or Associates is a party (whether the counterparty or counterparties are a Proposing Person or any Affiliate or Associate thereof, on the one hand, or one or more other third parties, on the other hand, (including any proposed
nominee(s)) (a) pertaining to the nomination(s) or other business proposed to be brought before the meeting of stockholders or (b) entered into for the purpose of acquiring, holding, disposing or voting of any shares of any class or series
of capital stock of the Corporation (which description shall identify the name of each other person who is party to such an agreement, arrangement or understanding) and (ii) identification of the names and addresses of other stockholders
(including beneficial owners) known by any of the Proposing Persons to be providing financial support or meaningful assistance in furtherance of the nomination(s) or other business proposed to be brought before the meeting of stockholders and, to
the extent known, the class and number of all shares of the Corporation’s capital stock owned beneficially or of record by such other stockholder(s) or other beneficial owner(s); and
(E) a statement (i) that the stockholder is a holder of record of capital stock of the Corporation entitled to vote at
such meeting, a representation that such stockholder intends to appear in person or by proxy at the meeting to propose such business or nominees and an acknowledgement that, if such stockholder (or a qualified representative of such stockholder)
does not appear to present such business or proposed nominees, as applicable, at such meeting, the Corporation need not present such business or proposed nominees for a vote at such meeting, notwithstanding that proxies in respect of such vote may
have been received by the Corporation, (ii) whether or not the stockholder giving the notice and/or the other Proposing Person(s), if any, (a) will deliver a proxy statement and form of proxy to holders of, in the case of a business
proposal, at least the percentage of voting power of all of the shares of capital stock of the Corporation required under applicable law to approve the proposal or, in the case of a nomination or nominations, at least 67 percent of the voting
power of all of the shares of capital stock of the Corporation entitled to vote on the election of directors or (b) otherwise solicit proxies or votes from stockholders in support of such proposal or nomination, as applicable,
(iii) providing a representation as to whether or not such Proposing Person intends to solicit proxies in support of director nominees other than the Corporation’s director nominees in accordance with Rule
14a-19 promulgated under the Exchange Act and (iv) that the stockholder will provide any other information relating to such item of business that would be required to be disclosed in a proxy statement or
other filing required to be made in connection with solicitations of proxies in support of the business proposed to be brought before the meeting pursuant to Section 14(a) of the Exchange Act (such statement, the “Solicitation
Statement”).
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For purposes of this Article I, the term “Proposing Person” shall mean the
following persons: (i) the stockholder of record providing the notice of nominations or business proposed to be brought before a stockholders’ meeting and (ii) the beneficial owner(s), if different, on whose behalf the nominations or
business proposed to be brought before a stockholders’ meeting is made. For purposes of this Section 2, each of the terms “Affiliates” and “Associates” shall have the meaning attributed to such term in Rule 12b-2 under the Exchange Act. For purposes of this Section 2, the term “Synthetic Equity Interest” shall mean any transaction, agreement or arrangement (or series of transactions, agreements or
arrangements), including, without limitation, any derivative, swap, hedge, repurchase or so-called “stock borrowing” or securities lending agreement or arrangement, the purpose or effect of which
is to, directly or indirectly: (a) give a person or entity economic benefit and/or risk similar to ownership of shares of any class or series of capital stock of the Corporation, in whole or in part, including due to the fact that such
transaction, agreement or arrangement provides, directly or indirectly, the opportunity to profit, or share in any profit, or avoid a loss from any increase or decrease in the value of any shares of any class or series of capital stock of the
Corporation, (b) mitigate loss to, reduce the economic risk of, or manage the risk of share price changes for, any person or entity with respect to any shares of any class or series of capital stock of the Corporation, or (c) increase or
decrease the voting power of any person or entity with respect to any shares of any class or series of capital stock of the Corporation.
(3) A stockholder providing Timely Notice of nominations or business proposed to be brought before an Annual Meeting shall
further update and supplement such notice, if necessary, so that the information (including, without limitation, the Material Ownership Interests information) provided or required to be provided in such notice pursuant to this Bylaw shall be true
and correct as of the record date for the meeting and as of the date that is ten (10) business days prior to such Annual Meeting, and such update and supplement shall be received by the Secretary at the principal executive offices of the
Corporation not later than 5:00 p.m. Eastern time on the fifth (5th) business day after the record date for the Annual Meeting (in the case of the update and supplement required to be made as of the record date), and not later than 5:00 p.m. Eastern
time on the eighth (8th) business day prior to the date of the Annual Meeting (in the case of the update and supplement required to be made as of ten (10) business days prior to the meeting). For the avoidance of doubt, the obligation to update
as set forth in this Section 2(a)(3) shall not limit the Corporation’s rights with respect to any deficiencies in any notice provided by a stockholder, extend any applicable deadlines hereunder, or enable or be deemed to permit a
stockholder who has previously submitted notice hereunder to amend or update any proposal or nomination or to submit any new proposal, including by changing or adding nominees, matters, business and/or resolutions proposed to be brought before a
meeting of the stockholders. Notwithstanding the foregoing, if a Proposing Person no longer plans to solicit proxies in accordance with its representation pursuant to Article I, Section 2(a)(2)(E), such Proposing Person shall
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inform the Corporation of this change by delivering a written notice to the Secretary at the principal executive offices of the Corporation no later than two (2) business days after making
the determination not to proceed with a solicitation of proxies. A Proposing Person shall also update its notice so that the information required by Article I, Section 2(a)(2)(C) is current through the date of the meeting or any adjournment,
postponement or rescheduling thereof, and such update shall be delivered in writing to the secretary at the principal executive offices of the Corporation no later than two (2) business days after the occurrence of any material change to the
information previously disclosed pursuant to Article I, Section 2(a)(2)(C).
(4) Notwithstanding anything in the
second sentence of Article I, Section 2(a)(2) of this Bylaw to the contrary, in the event that the number of directors to be elected to the Board of Directors is increased and there is no public announcement naming all of the nominees for
director or specifying the size of the increased Board of Directors made by the Corporation at least ten (10) days before the last day a stockholder may deliver a notice of nomination in accordance with the second sentence of Article I,
Section 2(a)(2), a stockholder’s notice required by this Bylaw shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be received by the Secretary of the Corporation
not later than 5:00 p.m. Eastern time on the tenth (10th) day following the day on which such public announcement is first made by the Corporation.
(b) General .
(1) Only such persons who are nominated in accordance with the provisions of this Bylaw shall be eligible for election and to
serve as directors, and only such business shall be conducted at an Annual Meeting as shall have been brought before the meeting in accordance with the provisions of this Bylaw or in accordance with Rule 14a-8
under the Exchange Act. The Board of Directors or a designated committee thereof shall have the power to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the provisions of this
Bylaw. If neither the Board of Directors nor such designated committee makes a determination as to whether any stockholder proposal or nomination was made in accordance with the provisions of this Bylaw, the chair of the meeting (as defined in
Section 9 of this Article I) shall have the power and duty to determine whether the stockholder proposal or nomination was made in accordance with the provisions of this Bylaw. If the Board of Directors or a designated committee thereof or the
chair of the meeting, as applicable, determines that any stockholder proposal or nomination was not made in accordance with the provisions of this Bylaw, such proposal or nomination shall be disregarded and shall not be presented for action at the
Annual Meeting.
(2) Except as otherwise required by law, nothing in this Article I, Section 2 shall obligate the
Corporation or the Board of Directors to include in any proxy statement or other stockholder communication distributed on behalf of the Corporation or the Board of Directors information with respect to any nominee for director or any other matter of
business submitted by a stockholder.
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(3) Notwithstanding the foregoing provisions of this Article I,
Section 2, if the nominating or proposing stockholder (or a qualified representative of the stockholder) does not appear at the Annual Meeting to present a nomination or any business, such nomination or business shall be disregarded,
notwithstanding that proxies in respect of such vote may have been received by the Corporation. For purposes of this Article I, Section 2, to be considered a qualified representative of the proposing stockholder, a person must be authorized by
a written instrument executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders, and such person must produce such written instrument or electronic
transmission, or a reliable reproduction of the written instrument or electronic transmission, to the chair of the meeting at the meeting of stockholders.
(4) For purposes of this Bylaw, “public announcement” shall mean disclosure in a press release reported by the Dow
Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(5) Notwithstanding the foregoing provisions of this Bylaw, a stockholder shall also comply with all applicable requirements of
the Exchange Act and the rules and regulations thereunder, including, but not limited to, Rule 14a-19 of the Exchange Act, with respect to the matters set forth in this Bylaw. If a stockholder fails to comply
with any applicable requirements of the Exchange Act, including, but not limited to, Rule 14a-19 promulgated thereunder, such stockholder’s proposed nomination or proposed business shall be deemed to
have not been made in compliance with this Bylaw and shall be disregarded.
(6) Further notwithstanding the foregoing
provisions of this Bylaw, unless otherwise required by law, (i) no Proposing Person shall solicit proxies in support of director nominees other than the Corporation’s nominees unless such Proposing Person has complied with Rule 14a-19 promulgated under the Exchange Act in connection with the solicitation of such proxies, including the provision to the Corporation of notices required thereunder with timely notice and (ii) if any
Proposing Person (A) provides notice pursuant to Rule 14a-19(b) promulgated under the Exchange Act, (B) subsequently fails to comply with the requirements of Rule
14a-19(a)(2) or Rule 14a-19(a)(3) promulgated under the Exchange Act, including the provision to the Corporation of notices required thereunder with timely notice and
(C) no other Proposing Person has provided notice pursuant to, and in compliance with, Rule 14a-19 under the Exchange Act that it intends to solicit proxies in support of the election of such proposed
nominee in accordance with Rule 14a-19(b) under the Exchange Act, then such proposed nominee shall be disqualified from nomination, the Corporation shall disregard the nomination of such proposed nominee and
no vote on the election of such proposed nominee shall occur. Upon request by the Corporation, if any Proposing Person provides notice pursuant to Rule 14a-19(b) promulgated under the Exchange Act, such
Proposing Person shall deliver to the Corporation, no later than five (5) business days prior to the applicable meeting date, reasonable evidence that it has met the requirements of Rule 14a-19(a)(3)
promulgated under the Exchange Act.
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(7) The number of nominees a stockholder may nominate for election at the
Annual Meeting (or in the case of a stockholder giving the notice on behalf of a beneficial owner, the number of nominees a stockholder may nominate for election at the Annual Meeting on behalf of such beneficial owner) shall not exceed the number
of directors to be elected at such Annual Meeting. A stockholder may not designate any substitute nominees unless the stockholder provides timely notice of such substitute nominee(s) in accordance with these
By-laws (and such notice contains all of the information, representations, questionnaires and certifications with respect to such substitute nominee(s) that are required by the
By-laws with respect to nominees for director).
SECTION 3. Special Meetings . Except
as otherwise required by statute and subject to the rights, if any, of the holders of any series of Preferred Stock, special meetings of the stockholders of the Corporation may be called only by or at the direction of the Board of Directors. The
Board of Directors may postpone or reschedule any previously scheduled special meeting of stockholders. Only those matters set forth in the notice of the special meeting may be considered or acted upon at a special meeting of stockholders of the
Corporation. Nominations of persons for election to the Board of Directors and stockholder proposals of other business shall not be brought before a special meeting of stockholders to be considered by the stockholders unless such special meeting is
held in lieu of an annual meeting of stockholders in accordance with Article I, Section 1 of these Bylaws, in which case such special meeting in lieu thereof shall be deemed an Annual Meeting for purposes of these Bylaws and the provisions of
Article I, Section 2 of these Bylaws shall govern such special meeting.
SECTION 4. Notice of Meetings; Adjournments .
(a) A notice of each Annual Meeting stating the hour, date and place, if any, of such Annual Meeting, the means of remote communication,
if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such meeting, and the record date for determining the stockholders entitled to vote at the meeting, if such date is different from the record date for
determining stockholders entitled to notice of the meeting, shall be given not less than ten (10) days nor more than sixty (60) days before the Annual Meeting, to each stockholder entitled to vote thereat by delivering such notice to such
stockholder or by mailing it, postage prepaid, addressed to such stockholder at the address of such stockholder as it appears on the Corporation’s stock transfer books. Without limiting the manner by which notice may otherwise be given to
stockholders, any notice to stockholders may be given by electronic transmission in the manner provided in Section 232 of the DGCL.
(b) Notice of all special meetings of stockholders shall be given in the same manner as provided for Annual Meetings, except that the notice
of all special meetings shall also state the purpose or purposes for which the meeting has been called.
(c) Notice of an Annual Meeting
or special meeting of stockholders need not be given to a stockholder if a waiver of notice is executed, or waiver of notice by electronic transmission is provided, before or after such meeting by such stockholder or if such stockholder attends such
meeting, unless such attendance is for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting was not lawfully called or convened.
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(d) The Board of Directors may postpone and reschedule or cancel any previously scheduled
Annual Meeting or special meeting of stockholders and any record date with respect thereto, regardless of whether any notice or public disclosure with respect to any such meeting has been sent or made pursuant to Section 2 of this
Article I or otherwise. In no event shall the public announcement of an adjournment, postponement or rescheduling of any previously scheduled meeting of stockholders commence a new time period for the giving of a stockholder’s notice
under this Article I.
(e) When any meeting is convened, the chair of the meeting or the stockholders present or represented by proxy at
such meeting may adjourn the meeting from time to time for any reason, regardless of whether a quorum is present, to reconvene at any other time and at any place at which a meeting of stockholders may be held under these Bylaws. When any Annual
Meeting or special meeting of stockholders is adjourned to another hour, date or place (including an adjournment taken to address a technical failure to convene or continue a meeting using remote communication), notice need not be given of the
adjourned meeting if the time, place, if any, thereof and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such adjourned meeting are (i) announced at the
meeting at which the adjournment is taken, (ii) displayed, during the time scheduled for the meeting, on the same electronic network used to enable stockholders and proxy holders to participate in the meeting by means of remote communication or
(iii) set forth in the notice of meeting given in accordance with this Section 4; provided, however, that if the adjournment is for more than thirty (30) days from the meeting date, or if after the adjournment a new record date is
fixed for the adjourned meeting, notice of the adjourned meeting and the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such adjourned meeting shall be given to each
stockholder of record entitled to vote thereat and each stockholder who, by law or under the Certificate of Incorporation of the Corporation (as the same may hereafter be amended and/or restated, the “Certificate”) or these Bylaws, is
entitled to such notice.
SECTION 5. Quorum . Except as otherwise provided by law, the certificate of incorporation or these
Bylaws, at each meeting of stockholders, the presence in person or by remote communication, if applicable, or represented by proxy, of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall
be necessary and sufficient to constitute a quorum. If less than a quorum is present at a meeting, the chair of the meeting or the holders of voting stock, by the affirmative vote of a majority of the voting power present in person or by proxy and
entitled to vote thereon, may adjourn the meeting from time to time, and the meeting may be held as adjourned without further notice, except as otherwise provided in Section 4 of this Article I. At such adjourned meeting at which a quorum
is present, any business may be transacted which might have been transacted at the meeting as originally noticed. The stockholders present at a duly constituted meeting may continue to transact business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum.
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SECTION 6. Voting and Proxies .
(a) The stockholders entitled to vote at any meeting of stockholders shall be determined in accordance with the provisions of Article IV,
Section 4 of these Bylaws, subject to Section 217 (relating to voting rights of fiduciaries, pledgors and joint owners of stock) and Section 218 (relating to voting trusts and other voting agreements) of the DGCL. Stockholders
shall have one vote for each share of stock entitled to vote owned by them of record according to the stock ledger of the Corporation as of the record date, unless otherwise provided by law or by the Certificate. Stockholders may vote either
(i) in person, (ii) by written proxy or (iii) by a transmission permitted by Section 212(c) of the DGCL. Any copy, facsimile telecommunication or other reliable reproduction of the writing or transmission permitted by
Section 212(c) of the DGCL may be substituted for or used in lieu of the original writing or transmission for any and all purposes for which the original writing or transmission could be used, provided that such copy, facsimile
telecommunication or other reproduction shall be a complete reproduction of the entire original writing or transmission. Proxies shall be filed in accordance with the procedures established for the meeting of stockholders. A proxy with respect to
stock held in the name of two or more persons shall be valid if executed by or on behalf of any one of them unless at or prior to the exercise of the proxy the Corporation receives a specific written notice to the contrary from any one of them. In
the event the Corporation receives proxies for disqualified or withdrawn nominees for the Board of Directors, such votes for such disqualified or withdrawn nominees in the proxies will be treated as abstentions.
(b) Any stockholder directly or indirectly soliciting proxies from other stockholders must use a proxy card color other than white, which
shall be reserved for the exclusive use by the Board of Directors.
SECTION 7. Action at Meeting . When a quorum is present at
any meeting of stockholders, any matter before any such meeting (other than an election of a director or directors) shall be decided by a majority of the votes properly cast for and against such matter, except where a larger vote is required by law,
by the Certificate or by these Bylaws. Any election of directors by stockholders shall be determined by a plurality of the votes properly cast on the election of directors.
SECTION 8. Stockholder Lists . The Corporation shall prepare, no later than the tenth (10th) day before each Annual Meeting or
special meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder;
provided, however, that if the record date for determining the stockholders entitled to vote is less than ten (10) days before the meeting date, the list shall reflect the stockholders entitled to vote as of the tenth (10th) day before the
meeting date. Such list shall be open to the examination of any stockholder for any purpose germane to the meeting for a period of ten (10) days ending on the day before the meeting date in the manner provided by law.
SECTION 9. Conduct of Meeting . The Board of Directors may adopt by resolution such rules, regulations and procedures for the
conduct of any meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with rules, regulations and procedures adopted by the Board of Directors, the chair of the meeting shall have the right to prescribe such
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rules, regulations and procedures and to do all such acts, as, in the judgment of such chair, are necessary, appropriate or convenient for the proper conduct of the meeting. Such rules,
regulations or procedures, whether adopted by the Board of Directors or the chair of the meeting, may include, without limitation, the following: (a) the establishment of an agenda for the meeting; (b) rules and procedures for maintaining
order at the meeting and the safety of those present at the meeting; (c) limitations on attendance at or participation in the meeting to stockholders of record of the Corporation, their duly authorized and constituted proxies, or such other
persons as the chair of the meeting shall determine; (d) restrictions on entry to the meeting after the time fixed for the commencement thereof; (e) the determination of the circumstances in which any person may make a statement or ask
questions and limitations on the time allotted to questions or comments; (f) the determination of when the polls shall open and close for any given matter to be voted on at the meeting; (g) the exclusion or removal of any stockholders or
any other individual who refuses to comply with meeting rules, regulations, or procedures; (h) restrictions on the use of audio and video recording devices, cell phones and other electronic devices; (i) rules, regulations and procedures
for compliance with any federal, state or local laws or regulations (including those concerning safety, health or security); (j) procedures (if any) requiring attendees to provide the Corporation advance notice of their intent to attend the meeting;
and (k) rules, regulations or procedures regarding the participation by means of remote communication of stockholders and proxy holders not physically present at a meeting, whether such meeting is to be held at a designated place or solely by
means of remote communication. The chair of the meeting shall be: (i) such person as the Board of Directors shall have designated to preside over all meetings of the stockholders; (ii) if the Board of Directors has not so designated such a
chair of the meeting or if the chair of the meeting is unable to so preside or is absent, then the Chairperson of the Board, if one is elected; (iii) if the Board of Directors has not so designated a chair of the meeting and there is no
Chairperson of the Board, or if the chair of the meeting or the Chairperson of the Board is unable to so preside or is absent, then the Chief Executive Officer, if one is elected; or (iv) in the absence or inability to serve of any of the
aforementioned persons, the President of the Corporation. Unless and to the extent determined by the Board of Directors or the chair of the meeting, the chair of the meeting shall not be obligated to adopt or follow any technical, formal or
parliamentary rules or principles of procedure. In the absence of the Secretary of the Corporation, the secretary of the meeting shall be such person as the chair of the meeting appoints.
SECTION 10. Inspectors of Elections . The Corporation shall, in advance of any meeting of stockholders, appoint one or three
inspectors to act at the meeting and make a written report thereof. The Corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at a meeting of
stockholders, the chair of the meeting officer shall appoint one or more inspectors to act at the meeting. Any inspector may, but need not, be an officer, employee or agent of the Corporation. Each inspector, before entering upon the discharge of
his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. The inspectors shall perform such duties as are required by the DGCL, including
the counting of all votes and ballots. The inspectors may appoint or retain other persons or entities to assist the inspectors in the performance of the duties of the inspectors. The chair of the meeting may review all determinations made by the
inspectors, and in so doing the chair of the meeting shall be entitled to exercise his or her sole judgment and discretion and he or she shall not be bound by any determinations made by the inspectors. All determinations by the inspectors and, if
applicable, the chair of the meeting, shall be subject to further review by any court of competent jurisdiction.
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ARTICLE II
Directors
SECTION 1. Powers . The business and affairs of the Corporation shall be managed by or under the direction of the Board of
Directors, except as otherwise provided by the Certificate or required by law.
SECTION 2. Number and Terms . The number of
directors of the Corporation shall be fixed solely and exclusively by resolution duly adopted from time to time by the Board of Directors, provided the Board of Directors shall consist of at least one (1) member. The directors shall hold office
in the manner provided in the Certificate.
SECTION 3. Qualification . No director need be a stockholder of the Corporation.
SECTION 4. Vacancies . Vacancies in the Board of Directors shall be filled in the manner provided in the Certificate.
SECTION 5. Removal . Directors may be removed from office only in the manner provided in the Certificate or by applicable law.
SECTION 6. Resignation . A director may resign at any time by electronic transmission or by giving written notice to the
Chairperson of the Board, if one is elected, the President or the Secretary. A resignation shall be effective upon receipt, unless the resignation otherwise provides.
SECTION 7. Regular Meetings . Regular meetings of the Board of Directors may be held at such hour, date and place (if any) as the
Board of Directors may from time to time determine and publicize by means of reasonable notice given to any director who is not present when such determination is made.
SECTION 8. Special Meetings . Special meetings of the Board of Directors may be called, orally or in writing, by or at the request
of a majority of the directors, the Chairperson of the Board, if one is elected, or the President. The person calling any such special meeting of the Board of Directors may fix the hour, date and place (if any) thereof. Notice thereof shall be given
to each director as provided in Section 9 of this Article II.
SECTION 9. Notice of Meetings . Notice of the hour, date
and place (if any) of all special meetings of the Board of Directors shall be given to each director by the Secretary or an Assistant Secretary, or in case of the death, absence, incapacity or refusal of such persons, by the Chairperson of the
Board, if one is elected, the President or such other officer designated by the Chairperson of the Board, if one is elected, or any one of the directors calling the meeting. Notice of any special meeting of the Board of Directors shall be given to
each director in person, by telephone, or by facsimile, electronic mail or other form of electronic communication, sent to
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his or her business or home address, at least twenty-four (24) hours in advance of the meeting, or by written notice mailed to his or her business or home address, at least forty-eight
(48) hours in advance of the meeting provided, however, that if the person or persons calling the meeting determine that it is otherwise necessary or advisable to hold the meeting sooner, then such person or persons may prescribe a shorter time
period for notice to be given personally or by telephone, facsimile, electronic mail or other similar means of communication. Such notice shall be deemed to be delivered when hand-delivered to such address; read to such director by telephone;
deposited in the mail so addressed, with postage thereon prepaid, if mailed; or dispatched or transmitted if sent by facsimile transmission or by electronic mail or other form of electronic communication. A written waiver of notice signed or
electronically transmitted before or after a meeting by a director and filed with the records of the meeting shall be deemed to be equivalent to notice of the meeting. The attendance of a director at a meeting shall constitute a waiver of notice of
such meeting, except where a director attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because such meeting is not lawfully called or convened. Except as otherwise required by
law, by the Certificate or by these Bylaws, neither the business to be transacted at, nor the purpose of, any meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting.
SECTION 10. Quorum . At any meeting of the Board of Directors, a majority of the total number of directors shall constitute a
quorum for the transaction of business, but if less than a quorum is present at a meeting, a majority of the directors present may adjourn the meeting from time to time, and the meeting may be held as adjourned without further notice. Any business
that might have been transacted at the meeting as originally noticed may be transacted at such adjourned meeting at which a quorum is present. For purposes of this Article II, the total number of directors includes any unfilled vacancies on the
Board of Directors.
SECTION 11. Action at Meeting . At any meeting of the Board of Directors at which a quorum is present, the
affirmative vote of a majority of the directors present shall constitute action by the Board of Directors, unless otherwise required by law, by the Certificate or by these Bylaws.
SECTION 12. Action by Consent . Any action required or permitted to be taken at any meeting of the Board of Directors may be taken
without a meeting if all members of the Board of Directors consent thereto in writing or by electronic transmission. After such action is taken, the writing or writings or electronic transmission or transmissions shall be filed with the records of
the meetings of the Board of Directors. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form. Such consent shall be treated as a resolution of
the Board of Directors for all purposes.
SECTION 13. Manner of Participation . Directors may participate in meetings of the
Board of Directors by means of video conference, conference telephone or other communications equipment by means of which all directors participating in the meeting can hear each other, and participation in a meeting in accordance herewith shall
constitute presence in person at such meeting for purposes of these Bylaws.
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SECTION 14. Presiding Director . The Board of Directors shall designate a
representative to preside over all meetings of the Board of Directors, provided that if the Board of Directors does not so designate such a presiding director or such designated presiding director is unable to so preside or is absent, then the
Chairperson of the Board, if one is elected, shall preside over all meetings of the Board of Directors. If both the designated presiding director, if one is so designated, and the Chairperson of the Board, if one is elected, are unable to preside or
are absent, the Board of Directors shall designate an alternate representative to preside over a meeting of the Board of Directors.
SECTION 15. Committees . The Board of Directors may designate one or more committees, including, without limitation, a Compensation
Committee, a Nominating & Corporate Governance Committee and an Audit Committee, and may delegate thereto some or all of its powers to such committee(s) except those which by law, by the Certificate or by these Bylaws may not be delegated.
Except as the Board of Directors may otherwise determine, any such committee may make rules for the conduct of its business, but unless otherwise provided by the Board of Directors or in such rules, its business shall be conducted so far as possible
in the same manner as is provided by these Bylaws for the Board of Directors. All members of such committees shall hold such offices at the pleasure of the Board of Directors. The Board of Directors may abolish any such committee at any time. Any
committee to which the Board of Directors delegates any of its powers or duties shall keep records of its meetings.
SECTION 16.
Compensation of Directors . Directors shall receive such compensation for their services as shall be determined by the Board of Directors, or a designated committee thereof, provided that directors who are serving the Corporation as employees
shall not receive any salary or other compensation for their services as directors of the Corporation.
SECTION 17. Emergency By-laws . In the event of any emergency, disaster, catastrophe or other similar emergency condition of a type described in Section 110(a) of the DGCL (an “Emergency”), notwithstanding any
different or conflicting provisions in the DGCL, the Certificate or these By-laws, during such Emergency:
(a) A meeting of the Board of Directors or a committee thereof may be called by any director, the Chairperson of the Board, the Chief
Executive Officer, the President or the Secretary by such means as, in the judgment of the person calling the meeting, may be feasible at the time, and notice of any such meeting of the Board of Directors or any committee may be given, in the
judgment of the person calling the meeting, only to such directors as it may be feasible to reach at the time and by such means as may be feasible at the time. Such notice shall be given at such time in advance of the meeting as, in the judgment of
the person calling the meeting, circumstances permit.
(b) The director or directors in attendance at a meeting called in accordance with
Section 17(a) of this Article II shall constitute a quorum.
(c) No officer, director or employee acting in accordance with this
Section 17 shall be liable except for willful misconduct. No amendment, repeal or change to this Section 17 shall modify the prior sentence with regard to actions taken prior to the time of such amendment, repeal or change.
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ARTICLE III
Officers
SECTION 1.
Enumeration . The officers of the Corporation shall consist of a President, a Treasurer, a Secretary and such other officers, including, without limitation, a Chairperson of the Board, a Chief Executive Officer and one or more Vice Presidents
(including Executive Vice Presidents or Senior Vice Presidents), Assistant Vice Presidents, Assistant Treasurers and Assistant Secretaries, as the Board of Directors may determine. Any number of offices may be held by the same person. The salaries
and other compensation of the officers of the Corporation will be fixed by or in the manner designated by the Board of Directors or a committee thereof to which the Board of Directors has delegated such responsibility.
SECTION 2. Election . The Board of Directors shall elect the President, the Treasurer and the Secretary. Other officers may be
elected by the Board of Directors or by such officers delegated such authority by the Board of Directors.
SECTION 3.
Qualification . No officer need be a stockholder or a director.
SECTION 4. Tenure . Except as otherwise provided by the
Certificate or by these Bylaws, each of the officers of the Corporation shall hold office until his or her successor is elected and qualified or until his or her earlier death, resignation or removal.
SECTION 5. Resignation and Removal . Any officer may resign by delivering his or her written or electronically transmitted
resignation to the Corporation addressed to the President or the Secretary, and such resignation shall be effective upon receipt, unless the resignation otherwise provides. Any resignation is without prejudice to the rights, if any, of the
Corporation under any contract to which the officer is a party. Except as otherwise provided by law or by resolution of the Board of Directors, the Board of Directors may remove any officer. Except as the Board of Directors may otherwise determine,
no officer who resigns or is removed shall have any right to any compensation as an officer for any period following his or her resignation or removal, or any right to damages on account of such removal, whether his or her compensation be by the
month or by the year or otherwise, unless such compensation is expressly provided in a duly authorized written agreement with the Corporation.
SECTION 6. Absence or Disability . In the event of the absence or disability of any officer, the Board of Directors may designate
another officer to act temporarily in place of such absent or disabled officer.
SECTION 7. Vacancies . Any vacancy in any
office may be filled for the unexpired portion of the term by the Board of Directors.
SECTION 8. President . The President
shall, subject to the direction of the Board of Directors, have such powers and shall perform such duties as the Board of Directors may from time to time designate.
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SECTION 9. Chairperson of the Board . The Chairperson of the Board, if one is
elected, shall have such powers and shall perform such duties as the Board of Directors may from time to time designate.
SECTION 10.
Chief Executive Officer . The Chief Executive Officer, if one is elected, shall have such powers and shall perform such duties as the Board of Directors may from time to time designate.
SECTION 11. Vice Presidents and Assistant Vice Presidents . Any Vice President (including any Executive Vice President or Senior
Vice President) and any Assistant Vice President shall have such powers and shall perform such duties as the Board of Directors or the Chief Executive Officer may from time to time designate.
SECTION 12. Treasurer and Assistant Treasurers . The Treasurer shall, subject to the direction of the Board of Directors and except
as the Board of Directors or the Chief Executive Officer may otherwise provide, have general charge of the financial affairs of the Corporation and shall cause to be kept accurate books of account. The Treasurer shall have custody of all funds,
securities and valuable documents of the Corporation. He or she shall have such other duties and powers as may be designated from time to time by the Board of Directors or the Chief Executive Officer. Any Assistant Treasurer shall have such powers
and perform such duties as the Board of Directors or the Chief Executive Officer may from time to time designate.
SECTION 13.
Secretary and Assistant Secretaries . The Secretary shall record all the proceedings of the meetings of the stockholders and the Board of Directors (including committees of the Board of Directors) in books kept for that purpose. In his or her
absence from any such meeting, a temporary secretary chosen at the meeting shall record the proceedings thereof. The Secretary shall have charge of the stock ledger (which may, however, be kept by any transfer or other agent of the Corporation). The
Secretary shall have custody of the seal of the Corporation, and the Secretary or an Assistant Secretary shall have authority to affix it to any instrument requiring it, and, when so affixed, the seal may be attested by his or her signature or that
of an Assistant Secretary. The Secretary shall have such other duties and powers as may be designated from time to time by the Board of Directors or the Chief Executive Officer. In the absence of the Secretary, any Assistant Secretary may perform
his or her duties and responsibilities. Any Assistant Secretary shall have such powers and perform such duties as the Board of Directors or the Chief Executive Officer may from time to time designate.
SECTION 14. Other Powers and Duties . Subject to these Bylaws and to such limitations as the Board of Directors may from time to
time prescribe, the officers of the Corporation shall each have such powers and duties as generally pertain to their respective offices, as well as such powers and duties as from time to time may be conferred by the Board of Directors or the Chief
Executive Officer.
SECTION 15. Representation of Shares of Other Corporations . The Chairperson of the Board, the President,
any Vice President, the Treasurer, the Secretary or Assistant Secretary of this Corporation, or any other person authorized by the Board of Directors or the President or a Vice President, is authorized to vote, represent and exercise on behalf of
this Corporation all rights incident to any and all securities of any other entity or entities standing in the name of this Corporation. The authority granted herein may be exercised either by such person directly or by any other person authorized
to do so by proxy or power of attorney duly executed by such person having the authority.
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SECTION 16. Bonded Officers . The Board of Directors may require any officer to
give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors upon such terms and conditions as the Board of Directors may specify, including, without limitation, a bond for the faithful
performance of his or her duties and for the restoration to the Corporation of all property in his or her possession or under his or her control belonging to the Corporation.
ARTICLE IV
Capital
Stock
SECTION 1. Certificates of Stock . Each stockholder shall be entitled to a certificate of the capital stock of the
Corporation in such form as may from time to time be prescribed by the Board of Directors. Such certificate shall be signed by any two authorized officers of the Corporation. The Corporation seal and the signatures by the Corporation’s
officers, the transfer agent or the registrar may be facsimiles. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed on such certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he or she were such officer, transfer agent or registrar at the time of its issue. Every certificate for shares of stock which are subject to
any restriction on transfer and every certificate issued when the Corporation is authorized to issue more than one class or series of stock shall contain such legend with respect thereto as is required by law. Notwithstanding anything to the
contrary provided in these Bylaws, the Board of Directors may provide by resolution or resolutions that some or all of any or all classes or series of its stock shall be uncertificated shares (except that the foregoing shall not apply to shares
represented by a certificate until such certificate is surrendered to the Corporation), and by the approval and adoption of these Bylaws, the Board of Directors has determined that all classes or series of the Corporation’s stock may be
uncertificated, whether upon original issuance, re-issuance or subsequent transfer.
SECTION 2. Transfers . Subject to any restrictions on transfer and unless otherwise provided by the Board of Directors, shares of
stock that are represented by a certificate may be transferred on the books of the Corporation by the surrender to the Corporation or its transfer agent of the certificate therefor properly endorsed or accompanied by a written assignment or power of
attorney properly executed, with transfer stamps (if necessary) affixed, and with such proof of the authenticity of signature as the Corporation or its transfer agent may reasonably require. Shares of stock that are not represented by a certificate
may be transferred on the books of the Corporation by submitting to the Corporation or its transfer agent such evidence of transfer and following such other procedures as the Corporation or its transfer agent may require.
SECTION 3. Stock Transfer Agreements . The Corporation shall have power to enter into and perform any agreement with any number of
stockholders of any one or more classes of stock of the Corporation to restrict the transfer of shares of stock of the Corporation of any one or more classes owned by such stockholders in any manner not prohibited by the DGCL.
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SECTION 4. Record Holders . Except as may otherwise be required by law, by the
Certificate or by these Bylaws, the Corporation shall be entitled to treat the record holder of stock as shown on its books as the owner of such stock for all purposes, including the payment of dividends and the right to vote with respect thereto,
regardless of any transfer, pledge or other disposition of such stock, until the shares have been transferred on the books of the Corporation in accordance with the requirements of these Bylaws.
SECTION 5. Record Date . In order that the Corporation may determine the stockholders entitled to notice of or to vote at any
meeting of stockholders or any adjournment thereof or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for
the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date:
(a) in the case of determination of stockholders entitled to vote at any meeting of stockholders, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting and
(b) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (i) the record date for determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at 5:00 p.m. Eastern time on the day next preceding the day on which notice is given, or, if notice is waived, at 5:00 p.m. Eastern time on the day next preceding the day on which the meeting is held; and (ii) the record
date for determining stockholders for any other purpose shall be 5:00 p.m. Eastern time on the day on which the Board of Directors adopts the resolution relating thereto.
SECTION 6. Replacement of Certificates . In case of the alleged loss, destruction or mutilation of a certificate of stock of the
Corporation, a duplicate certificate may be issued in place thereof, upon such terms as the Board of Directors may prescribe.
ARTICLE V
Indemnification
SECTION 1. Definitions . For purposes of this Article V:
(a) “Corporate Status” describes the status of a person who is serving or has served (i) as a Director of the Corporation,
(ii) as an Officer of the Corporation, (iii) as a Non-Officer Employee of the Corporation or (iv) as a director, partner, trustee, officer, employee or agent of any other corporation,
partnership, limited liability company, joint venture, trust, employee benefit plan, foundation, association, organization or other legal entity which such person is or was serving at the request of the Corporation. For purposes of this
Section 1(a), a Director, Officer or Non-Officer Employee of the Corporation who is serving or has served as a director, partner, trustee, officer, employee or agent of a Subsidiary shall be deemed to be
serving at the request of the Corporation. Notwithstanding the foregoing, “Corporate Status” shall not include the status of a person who is serving or has served as a director, officer, employee or agent of a constituent corporation
absorbed in a merger or consolidation transaction with the Corporation with respect to such person’s activities prior to said transaction, unless specifically authorized by the Board of Directors or the stockholders of the Corporation;
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(b) “Director” means any person who serves or has served the Corporation as a
director on the Board of Directors of the Corporation;
(c) “Disinterested Director” means, with respect to each Proceeding in
respect of which indemnification is sought hereunder, a Director of the Corporation who is not and was not a party to such Proceeding;
(d) “Expenses” means all attorneys’ fees, retainers, court costs, transcript costs, fees of expert witnesses, private
investigators and professional advisors (including, without limitation, accountants and investment bankers), travel expenses, duplicating costs, printing and binding costs, costs of preparation of demonstrative evidence and other courtroom
presentation aids and devices, costs incurred in connection with document review, organization, imaging and computerization, telephone charges, postage, delivery service fees, and all other disbursements, costs or expenses of the type customarily
incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, settling or otherwise participating in, a Proceeding;
(e) “Liabilities” means judgments, damages, liabilities, losses, penalties, excise taxes, fines and amounts paid in settlement;
(f) “Non-Officer Employee” means any person who serves or has served as an employee
or agent of the Corporation, but who is not or was not a Director or Officer;
(g) “Officer” means any person who serves or
has served the Corporation as an officer of the Corporation appointed by the Board of Directors of the Corporation;
(h)
“Proceeding” means any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, inquiry, investigation, administrative hearing or other proceeding, whether civil, criminal, administrative,
arbitrative or investigative; and
(i) “Subsidiary” means any corporation, partnership, limited liability company, joint
venture, trust or other entity of which the Corporation owns (either directly or through or together with another Subsidiary of the Corporation) either (i) a general partner, managing member or other similar interest or (ii) (A) fifty
percent (50%) or more of the voting power of the voting capital equity interests of such corporation, partnership, limited liability company, joint venture or other entity, or (B) fifty percent (50%) or more of the outstanding voting capital
stock or other voting equity interests of such corporation, partnership, limited liability company, joint venture or other entity.
SECTION 2. Indemnification of Directors and Officers .
(a) Subject to the operation of Section 4 of this Article V, each Director and Officer shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the DGCL, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification
rights than such law permitted the Corporation to provide prior to such amendment), and to the extent authorized in this Section 2.
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(1) Actions, Suits and Proceedings Other than By or In the Right of the
Corporation . Each Director and Officer shall be indemnified and held harmless by the Corporation against any and all Expenses and Liabilities that are incurred or paid by such Director or Officer or on such Director’s or Officer’s
behalf in connection with any Proceeding or any claim, issue or matter therein (other than an action by or in the right of the Corporation), which such Director or Officer is, or is threatened to be made, a party to or participant in by reason of
such Director’s or Officer’s Corporate Status, if such Director or Officer acted in good faith and in a manner such Director or Officer reasonably believed to be in or not opposed to the best interests of the Corporation and, with
respect to any criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful.
(2) Actions,
Suits and Proceedings By or In the Right of the Corporation . Each Director and Officer shall be indemnified and held harmless by the Corporation against any and all Expenses that are incurred by such Director or Officer or on such
Director’s or Officer’s behalf in connection with any Proceeding or any claim, issue or matter therein by or in the right of the Corporation, which such Director or Officer is, or is threatened to be made, a party to or participant in by
reason of such Director’s or Officer’s Corporate Status, if such Director or Officer acted in good faith and in a manner such Director or Officer reasonably believed to be in or not opposed to the best interests of the Corporation;
provided, however, that no indemnification shall be made under this Section 2(a)(2) in respect of any claim, issue or matter as to which such Director or Officer shall have been finally adjudged by a court of competent jurisdiction to be liable
to the Corporation, unless, and only to the extent that, the Court of Chancery of the State of Delaware or another court in which such Proceeding was brought shall determine upon application that, despite adjudication of liability, but in view of
all the circumstances of the case, such Director or Officer is fairly and reasonably entitled to indemnification for such Expenses that such court deems proper.
(3) Survival of Rights . The rights of indemnification provided by this Section 2 shall continue as to a Director or
Officer after he or she has ceased to be a Director or Officer and shall inure to the benefit of his or her heirs, executors, administrators and personal representatives.
(4) Actions by Directors or Officers . Notwithstanding the foregoing, the Corporation shall indemnify any Director or
Officer seeking indemnification in connection with a Proceeding initiated by such Director or Officer only if such Proceeding (including any parts of such Proceeding not initiated by such Director or Officer) was authorized in advance by the Board
of Directors, unless such Proceeding was brought to enforce such Officer’s or Director’s rights to indemnification or, in the case of Directors, advancement of Expenses under these Bylaws in accordance with the provisions set forth
herein.
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SECTION 3. Indemnification of Non-Officer
Employees . Subject to the operation of Section 4 of this Article V, each Non-Officer Employee may, in the discretion of the Board of Directors, be indemnified by the Corporation to the fullest extent
authorized by the DGCL, as the same exists or may hereafter be amended, against any or all Expenses and Liabilities that are incurred by such Non-Officer Employee or on such
Non-Officer Employee’s behalf in connection with any threatened, pending or completed Proceeding, or any claim, issue or matter therein, which such Non-Officer
Employee is, or is threatened to be made, a party to or participant in by reason of such Non-Officer Employee’s Corporate Status, if such Non-Officer Employee
acted in good faith and in a manner such Non-Officer Employee reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The rights of indemnification provided by this Section 3 shall exist as to a Non-Officer Employee after he or she has ceased to be a Non-Officer Employee and shall inure to the benefit of his or her heirs, personal representatives, executors and administrators. Notwithstanding the foregoing, the Corporation may indemnify any Non-Officer Employee seeking indemnification in connection with a Proceeding initiated by such Non-Officer Employee only if such Proceeding was authorized in advance by the
Board of Directors.
SECTION 4. Determination . Unless ordered by a court, no indemnification shall be provided pursuant to
this Article V to a Director, to an Officer or to a Non-Officer Employee unless a determination shall have been made that such person acted in good faith and in a manner such person reasonably believed to be
in or not opposed to the best interests of the Corporation and, with respect to any criminal Proceeding, such person had no reasonable cause to believe his or her conduct was unlawful. Such determination shall be made by (a) a majority vote of
the Disinterested Directors, even though less than a quorum of the Board of Directors, (b) a committee comprised of Disinterested Directors, such committee having been designated by a majority vote of the Disinterested Directors (even though
less than a quorum), (c) if there are no such Disinterested Directors, or if a majority of Disinterested Directors so directs, by independent legal counsel in a written opinion or (d) by the stockholders of the Corporation.
SECTION 5. Advancement of Expenses to Directors Prior to Final Disposition .
(a) The Corporation shall advance all Expenses incurred by or on behalf of any Director in connection with any Proceeding in which such
Director is involved by reason of such Director’s Corporate Status within thirty (30) days after the receipt by the Corporation of a written statement from such Director requesting such advance or advances from time to time, whether prior
to or after final disposition of such Proceeding. Such statement or statements shall reasonably evidence the Expenses incurred by such Director and shall be preceded or accompanied by an undertaking by or on behalf of such Director to repay any
Expenses so advanced if it shall ultimately be determined that such Director is not entitled to be indemnified against such Expenses. Notwithstanding the foregoing, the Corporation shall advance all Expenses incurred by or on behalf of any Director
seeking advancement of expenses hereunder in connection with a Proceeding initiated by such Director only if such Proceeding (including any parts of such Proceeding not initiated by such Director) was (i) authorized by the Board of Directors or
(ii) brought to enforce such Director’s rights to indemnification or advancement of Expenses under these Bylaws.
22
(b) If a claim for advancement of Expenses hereunder by a Director is not paid in full by
the Corporation within thirty (30) days after receipt by the Corporation of documentation of Expenses and the required undertaking, such Director may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the
claim and, if successful in whole or in part, such Director shall also be entitled to be paid the expenses of prosecuting such claim. The failure of the Corporation (including its Board of Directors or any committee thereof, independent legal
counsel or stockholders) to make a determination concerning the permissibility of such advancement of Expenses under this Article V shall not be a defense to an action brought by a Director for recovery of the unpaid amount of an advancement claim
and shall not create a presumption that such advancement is not permissible. The burden of proving that a Director is not entitled to an advancement of expenses shall be on the Corporation.
(c) In any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation
shall be entitled to recover such expenses upon a final adjudication that the Director has not met any applicable standard for indemnification set forth in the DGCL.
SECTION 6. Advancement of Expenses to Officers and Non-Officer Employees Prior to Final
Disposition .
(a) The Corporation may, at the discretion of the Board of Directors, advance any or all Expenses incurred by or on
behalf of any Officer or any Non-Officer Employee in connection with any Proceeding in which such person is involved by reason of his or her Corporate Status as an Officer or
Non-Officer Employee upon the receipt by the Corporation of a statement or statements from such Officer or Non-Officer Employee requesting such advance or advances from
time to time, whether prior to or after final disposition of such Proceeding. Such statement or statements shall reasonably evidence the Expenses incurred by such Officer or Non-Officer Employee and shall be
preceded or accompanied by an undertaking by or on behalf of such person to repay any Expenses so advanced if it shall ultimately be determined that such Officer or Non-Officer Employee is not entitled to be
indemnified against such Expenses.
(b) In any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms
of an undertaking, the Corporation shall be entitled to recover such expenses upon a final adjudication that the Officer or Non-Officer Employee has not met any applicable standard for indemnification set
forth in the DGCL.
SECTION 7. Contractual Nature of Rights .
(a) The provisions of this Article V shall be deemed to be a contract between the Corporation and each Director and Officer entitled to
the benefits hereof at any time while this Article V is in effect, in consideration of such person’s past or current and any future performance of services for the Corporation. Neither amendment, repeal or modification of any provision of
this Article V nor the adoption of any provision of the Certificate inconsistent with this Article V shall eliminate or reduce any right conferred by this Article V in respect of any act or omission occurring, or any cause of action
or claim that accrues or arises or any state of facts existing, at the time of or before such amendment, repeal, modification or adoption of an inconsistent provision (even in the case of a proceeding based on such a state of facts that is
23
commenced after such time), and all rights to indemnification and advancement of Expenses granted herein or arising out of any act or omission shall vest at the time of the act or omission in
question, regardless of when or if any proceeding with respect to such act or omission is commenced. The rights to indemnification and to advancement of expenses provided by, or granted pursuant to, this Article V shall continue notwithstanding
that the person has ceased to be a director or officer of the Corporation and shall inure to the benefit of the estate, heirs, executors, administrators, legatees and distributees of such person.
(b) If a claim for indemnification hereunder by a Director or Officer is not paid in full by the Corporation within sixty (60) days after
receipt by the Corporation of a written claim for indemnification, such Director or Officer may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim, and if successful in whole or in part, such Director
or Officer shall also be entitled to be paid the expenses of prosecuting such claim. The failure of the Corporation (including its Board of Directors or any committee thereof, independent legal counsel or stockholders) to make a determination
concerning the permissibility of such indemnification under this Article V shall not be a defense to an action brought by a Director or Officer for recovery of the unpaid amount of an indemnification claim and shall not create a presumption that
such indemnification is not permissible. The burden of proving that a Director or Officer is not entitled to indemnification shall be on the Corporation.
(c) In any suit brought by a Director or Officer to enforce a right to indemnification hereunder, it shall be a defense that such Director or
Officer has not met any applicable standard for indemnification set forth in the DGCL.
SECTION 8.
Non-Exclusivity of Rights . The rights to indemnification and to advancement of Expenses set forth in this Article V shall not be exclusive of any other right that any Director, Officer or Non-Officer Employee may have or hereafter acquire under any statute, provision of the Certificate or these Bylaws, agreement, vote of stockholders or Disinterested Directors or otherwise.
SECTION 9. Insurance . The Corporation may maintain insurance, at its expense, to protect itself and any Director, Officer or Non-Officer Employee against any liability of any character asserted against or incurred by the Corporation or any such Director, Officer or Non-Officer Employee, or arising
out of any such person’s Corporate Status, whether or not the Corporation would have the power to indemnify such person against such liability under the DGCL or the provisions of this Article V.
SECTION 10. Other Indemnification . The Corporation’s obligation, if any, to indemnify or provide advancement of Expenses to
any person under this Article V as a result of such person serving, at the request of the Corporation, as a director, partner, trustee, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise shall be reduced by any amount such person may collect as indemnification or advancement of Expenses from such other corporation, partnership, joint venture, trust, employee benefit plan or enterprise (the “Primary
Indemnitor”). Any indemnification or advancement of Expenses under this Article V owed by the Corporation as a result of a person serving, at the request of the Corporation, as a director, partner, trustee, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise shall only be in excess of, and shall be secondary to, the indemnification or advancement of Expenses available from the applicable Primary
Indemnitor(s) and any applicable insurance policies.
24
SECTION 11. Savings Clause . If this Article V or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the Corporation shall nevertheless indemnify each indemnitee as to any expenses (including, without limitation, attorneys’ fees), liabilities, losses, judgments, fines
(including, without limitation, excise taxes and penalties arising under the Employee Retirement Income Security Act of 1974, as amended) and amounts paid in settlement in connection with any action, suit, proceeding or investigation, whether civil,
criminal or administrative, including, without limitation, an action by or in the right of the Corporation, to the fullest extent permitted by any applicable portion of this Article V that shall not have been invalidated and to the fullest extent
permitted by applicable law.
ARTICLE VI
Miscellaneous Provisions
SECTION 1. Fiscal Year . The fiscal year of the Corporation shall be determined by the Board of Directors.
SECTION 2. Seal . The Board of Directors shall have power to adopt and alter the seal of the Corporation.
SECTION 3. Execution of Instruments . All deeds, leases, transfers, contracts, bonds, notes and other obligations to be entered
into by the Corporation in the ordinary course of its business without director action may be executed on behalf of the Corporation by the Chairperson of the Board, if one is elected, the President or the Treasurer or any other officer, employee or
agent of the Corporation as the Board of Directors or an executive committee of the Board of Directors may authorize or determine.
SECTION 4. Voting of Securities . Unless the Board of Directors otherwise provides, the Chairperson of the Board, if one is
elected, the President or the Treasurer may waive notice of, and act on behalf of the Corporation, or appoint another person or persons to act as proxy or attorney in fact for the Corporation with or without discretionary power and/or power of
substitution, at any meeting of stockholders or stockholders of any other corporation or organization, any of whose securities are held by the Corporation.
SECTION 5. Resident Agent . The Board of Directors may appoint a resident agent upon whom legal process may be served in any action
or proceeding against the Corporation.
SECTION 6. Corporate Records . The original or attested copies of the Certificate,
Bylaws and records of all meetings of the incorporators, stockholders and the Board of Directors and the stock transfer books, which shall contain the names of all stockholders, their record addresses and the amount of stock held by each, may be
kept outside the State of Delaware and shall be kept at the principal office of the Corporation, at an office of its counsel, at an office of its transfer agent or in such manner as may be permitted by law.
25
SECTION 7. Certificate . All references in these Bylaws to the Certificate shall
be deemed to refer to the Certificate, as amended and/or restated and in effect from time to time.
SECTION 8. Exclusive
Jurisdiction of Delaware Courts or the United States Federal District Courts . Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive
forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of, or a claim based on, a breach of a fiduciary duty owed by any current or former director, officer or other
employee or stockholder of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL or the Certificate or these Bylaws (including the
interpretation, validity or enforceability thereof) or as to which the DGCL confers jurisdiction on the Court of Chancery of the State of Delaware or (iv) any action asserting a claim governed by the internal affairs doctrine; provided,
however, that this sentence will not apply to any causes of action arising under the Securities Act of 1933, as amended, or the Exchange Act, or to any claim for which the federal courts have exclusive jurisdiction. Unless the Corporation consents
in writing to the selection of an alternative forum, the federal district courts of the United States of America shall be the sole and exclusive forum for resolving any complaint asserting a cause of action arising under the Securities Act of 1933,
as amended, the Exchange Act, or the respective rules and regulations promulgated thereunder. To the fullest extent permitted by law, any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation
shall be deemed to have notice of and consented to the provisions of this Section 8.
SECTION 9. Amendment of Bylaws .
(a) Amendment by Directors . Except as otherwise required by law, these Bylaws may be amended or repealed by the Board of
Directors.
(b) Amendment by Stockholders . Except as otherwise provided herein, the Bylaws of the Corporation may be amended or
repealed at any annual meeting of stockholders, or at any special meeting of stockholders called for such purpose, by the affirmative vote of the holders of not less than two-thirds (2/3) of the voting power
of the outstanding shares of capital stock entitled to vote on such amendment or repeal, voting together as a single class; provided, however, that if the Board of Directors recommends that stockholders approve such amendment or repeal at such
meeting of stockholders, such amendment or repeal shall only require the affirmative vote of the majority of outstanding shares of capital stock entitled to vote on such amendment or repeal, voting together as a single class.
SECTION 10. Notices . If mailed, notice to stockholders shall be deemed given when deposited in the mail, postage prepaid, directed
to the stockholder at such stockholder’s address as it appears on the records of the Corporation. Without limiting the manner by which notice otherwise may be given to stockholders, any notice to stockholders may be given by electronic
transmission in the manner provided in Section 232 of the DGCL.
26
SECTION 11. Waivers . A written waiver of any notice, signed by a stockholder or
director, or waiver by electronic transmission by such person, whether given before or after the time of the event for which notice is to be given, shall be deemed equivalent to the notice required to be given to such person. Neither the business to
be transacted at, nor the purpose of, any meeting need be specified in such a waiver.
Approved by the Board of Directors on [],
approved by the stockholders on [], and effective upon the effectiveness of the Corporation’s Registration Statement on Form S-1 for its initial public offering.
27
### EX-4.2 - EX-4.2
EX-4.2
6
d107928dex42.htm
EX-4.2
EX-4.2
Exhibit 4.2
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY
MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
REGISTRATION IS NOT REQUIRED UNDER SUCH ACT OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SUCH ACT.
Date of Issuance: September 4, 2025
KARDIGAN, INC.
WARRANT
TO PURCHASE SHARES OF COMMON STOCK
For value received in connection with the Holder (as defined below)’s purchase of Series B
Preferred Stock of the Company (as defined below) pursuant to that certain Series B Preferred Stock Purchase Agreement, dated September 4, 2025, the receipt and sufficiency of which is hereby acknowledged, this Warrant (the
“ Warrant ”) is issued to ARCH Venture Fund XIII, L.P. (together with such holder’s assigns in accordance with the terms of this Warrant, the “ Holder ”) by Kardigan, Inc. (the
“ Company ”).
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1. |
Purchase of Shares .
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(a) |
Number of Shares . Subject to the terms and conditions set forth herein (including
as set forth in Section 2(a) below), the Holder is entitled to purchase from the Company up to 550,000 fully paid and nonassessable shares of Exercise Stock (as defined below) subject to adjustment pursuant to Section 8
hereof (the “ Shares ”).
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(b) |
Exercise Price . The exercise price for the Shares shall be $21.36508 per share (the
“ Exercise Price ”). The Shares and the Exercise Price shall be subject to adjustment pursuant to Section 8 hereof.
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(c) |
Type of Shares . The Shares issuable upon exercise of this Warrant shall be shares of the
Company’s Common Stock (the “ Exercise Stock ”).
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2. |
Exercise Period .
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(a) |
This Warrant shall be exercisable, in whole or in part, only upon the first date the Company achieves a
Valuation (as defined below) of $5,000,000,000 (as reasonably determined by the Company’s Board of Directors (the “ Board ”)) and ending at 5:00 p.m. E.T. on the tenth anniversary of the Date of Issuance (the
“ Exercise Period ”) .
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Notwithstanding anything to the contrary contained herein, if any of the vesting milestones set forth in the CEO Grant with respect to a Valuation equal to or in excess of $5,000,000,000 are
accelerated by the Board without the achievement of such vesting Valuation milestone(s) in accordance with the terms of the CEO Grant, then the $5,000,000,000 Valuation shall also be deemed achieved for purposes of this Warrant. |
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(b) |
Definitions .
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i. |
“ CEO Grant ” means that certain Early Exercise
Non-Qualified Stock Option Agreement under the Plan issued to Tassos Gianakakos dated on or about September 4, 2025.
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ii. |
“ Certificate of Incorporation ” means the Company’s Amended and Restated Certificate of
Incorporation, as may be amended and/or restated from time to time.
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iii. |
“ Consideration ” means the value of cash and/or
non-cash property (including equity securities, notes and other similar non-cash property) received by holders of Securities in a Sale Event. For the purposes hereof, non-cash property shall be valued in good faith by the Board including the then-seated Preferred Directors (as defined in the Certificate of Incorporation). For the purpose of calculating the amount of Consideration
received by holders of Securities, such holders shall be deemed to have received Holdback Proceeds only when and if such Holdback Proceeds are actually paid to such holders.
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iv. |
“ Holdback Proceeds ” means any portion of the aggregate value of the Consideration that
(i) is payable following the closing of a Sale Event, (ii) is contingent upon the performance of the Company or its assets, and/or attainment of financial targets, milestones, or other performance metrics or milestones following the
consummation of a Sale Event, including royalty payments and/or (iii) is held in an escrow fund or otherwise held back for indemnification, purchase price adjustment or other claims.
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v. |
“ Fully Diluted Valuation ” means (i) the Last Round Price multiplied by
(ii) the number of Securities issued and outstanding (determined on an as-converted, as-exercised or as-exchanged to Common
Stock basis) treating all shares of Common Stock reserved and available for issuance under the Plan or other equity incentive plan or arrangement as issued and outstanding (only to the extent such shares of Common Stock reserved and available for
issuance were reserved for issuance prior to or at the time of the Company’s last bona fide equity financing for the principal purpose of raising capital).
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vi. |
“ Last Round Price ” means the cash price per share for which the Company last sold its
preferred stock (on an as-converted to Common Stock basis) in a bona fide equity financing for the principal purpose of raising capital.
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vii. |
“ Market Capitalization ” means (i) the number of Securities issued and outstanding
(determined on an as-converted, as-exercised or as-exchanged to Common Stock basis) multiplied by (ii) the VWAP of a
share of Common Stock over the preceding thirty (30) day consecutive calendar period.
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viii. |
“ Person ” shall mean any individual, corporation, partnership (limited or general), limited
liability company, limited liability partnership, association, trust, joint venture, unincorporated organization or any similar entity.
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ix. |
“ Plan ” shall mean the Company’s Amended and Restated 2023 Stock Option and Grant Plan,
as amended from time to time.
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x. |
“ Purchase Agreement ” shall mean the Company’s Series B Preferred Stock Purchase
Agreement dated September 4, 2025 by and among the Company and the investors listed on Exhibit A thereto.
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xi. |
“ Sale Event ” shall mean a Deemed Liquidation Event as such term is defined in the
Certificate of Incorporation.
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xii. |
“ Securities ” means the Company’s capital stock and stock options, warrants, and other
securities directly or indirectly convertible into, exercisable for or exchangeable for shares of Common Stock.
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xiii. |
“ Termination Event ” means (a) the consummation of a Sale Event or (b) any
voluntary or involuntary liquidation, dissolution or winding up of the Company.
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xiv. |
“ Valuation ” shall be measured as follows:
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1. |
in the case of a Sale Event, the aggregate Consideration received (whether at the closing or following the
closing of such Sale Event) by holders of Securities;
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2. |
at any time prior to the Company’s Initial Public Offering, the Fully Diluted Valuation; and
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3. |
at any time after the Company’s Initial Public Offering, the Market Capitalization.
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All determinations of the Valuation shall be reasonably determined by the Board. Any determination by the
Board regarding the Valuation shall be consistent with the determination of the Valuation (as defined in the CEO Grant) as set forth in the CEO Grant.
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xv. |
“ VWAP ” means the volume weighted average trading price of Common Stock as reported by
Bloomberg, L.P. (which VWAP, if calculated for a multi-day period, shall be based on all trades during the primary trading session from 9:30 a.m., New York City time, to the time of the closing print on the
primary exchange of the Company (or its successor entity, if any) but in no case later than 4:10 p.m. New York City time for such period, and not an average of daily averages) or, if not reported therein, in another authoritative source mutually
selected by the Holder and the Company.
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3. |
Method of Exercise .
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(a) |
While this Warrant remains outstanding and is exercisable in accordance with Section 2 above, the
Holder may exercise, in whole or in part, to the extent then exercisable, the purchase rights evidenced hereby. Such exercise shall be effected by:
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i. |
the surrender of the Warrant, together with a duly executed copy of the Notice of Exercise attached hereto, to
the Company at its principal office (or at such other place as the Company shall notify the Holder in writing); and
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ii. |
the payment to the Company of an amount equal to the aggregate Exercise Price for the number of Shares being
purchased.
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(b) |
Each exercise of this Warrant shall be deemed to have been effected immediately prior to the close of business
on the day on which this Warrant is surrendered to the Company as provided in Section 3(a) above. At such time, the person or persons in whose name or names any certificate for the Shares shall be issuable upon such exercise as provided
in Section 3(c) below shall be deemed to have become the holder or holders of record of the Shares represented by such certificate.
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(c) |
Upon the exercise of the rights represented by this Warrant, a book entry or other evidence for the Shares so
purchased, registered in the name of the Holder or persons affiliated with the Holder, if the Holder so designates (upon payment by such Holder of any applicable transfer taxes and subject to the assignment restrictions hereof), shall be issued and
delivered to the Holder within a reasonable time after the rights represented by this Warrant shall have been so exercised. If this Warrant is exercised for fewer than all of the Shares, the Company shall issue to the Holder a new Warrant on
identical terms reflecting the remainder of the Shares.
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(d) |
The Company shall provide written notice to the Holder at least ten (10) business days prior to the
consummation of a Termination Event. Notwithstanding the provisions of Section 2 , in the event that the Company fails to provide such notice or if the holder has not exercised this Warrant prior to the closing of a Termination Event,
this Warrant shall automatically be deemed to be exercised to the extent exercisable in full in the manner set forth in Section 4 , without any further action on behalf of the Holder immediately prior to such closing.
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(e) |
Notwithstanding the foregoing or anything to the contrary in this Warrant, if Holder, along with the Notice of
Exercise, notifies the Company that a filing under the Hart-Scott-Rodino Act of 1976, as amended (the “ HSR Act ”) may be required in connection with the proposed exercise of this Warrant, then the Company shall provide Holder with
such information as may be reasonably requested so that Holder may make a final determination of whether a filing is required. If Holder determines that an HSR Act filing is required, then the parties shall follow the procedures set forth herein and
no Shares shall be issued under this Warrant to Holder pursuant to the applicable Notice of Exercise until the applicable waiting period under the HSR Act has expired or been earlier terminated and this Warrant shall not terminate under any
circumstances until such issuance of such Shares has been completed.
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i. |
If Holder determines that an HSR Act filing is required pursuant to Section 3(e) , then each of the
Company and Holder shall, as promptly as practicable, file with the United States Federal Trade Commission (the “ FTC ”) and Department of Justice Antitrust Division (the “ DOJ ”) an appropriate and complete
Notification and Report Form (the “ HSR Act Filings ”). The HSR Act Filings shall request early termination of the applicable waiting period under the HSR Act. Each of the Company and Holder shall, and shall cause its affiliates to,
furnish to the other party such necessary information (to the extent consistent with any applicable law) and reasonable assistance as the other party may request to determine whether an HSR Act Filing is required and in connection with its
preparation of the HSR Act Filings. Each of the Company and Holder shall, and shall cause its affiliates to, keep the other party apprised of the status of any communications by such party or any of its affiliates with, and any inquiries or requests
for additional information from, the FTC, the DOJ or any other governmental entity with respect to the HSR Act Filings or the transactions reported therein. Each of the Company and Holder shall, and the Company shall cause its affiliates to, comply
as promptly as practicable with any such inquiry or request and provide any supplemental information requested in connection with the HSR Act Filings or pursuant to any other applicable law. No party hereto or any of their respective affiliates
shall participate in any meeting or engage in any substantive conversation with any governmental entity with respect to the HSR Act Filings or transactions reported therein without giving the other party prior notice of the
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meeting or conversation. Any such provisions of information, rights to participate or consultations between the parties may be made on a counsel-only or outside counsel-only basis to the extent required under applicable
law or as appropriate to protect sensitive business information or maintain attorney-client or other privilege. Notwithstanding anything in this Warrant to the contrary, if Holder has notified the Company that an HSR Act filing is required, then no
Shares shall be issued under this Warrant to Holder until the applicable waiting period under the HSR Act has expired or been earlier terminated and this Warrant shall not terminate until such issuance has been completed. |
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4. |
Net Exercise . In lieu of exercising this Warrant with cash, the Holder may elect to receive shares equal
to the value of this Warrant (or the portion thereof being exercised) by surrender of this Warrant to the Company together with notice of such election (a “ Net Exercise ”). A Holder who Net Exercises shall have the rights described
in Sections 3(b) and 3(c) hereof, and the Company shall issue to such Holder a number of Shares computed using the following formula:
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Where
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X = |
The number of Shares to be issued to the Holder.
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Y = |
The number of Shares purchasable and exercisable under this Warrant or, if only a portion of the Warrant is
being exercised, the portion of the Warrant being exercised (at the date of such calculation).
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A = |
The fair market value of one (1) Share (at the date of such calculation).
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B = |
The Exercise Price (as adjusted to the date of such calculation).
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For purposes of this Section 4 , the fair market value of a Share shall mean the average of the closing prices of the Shares quoted
in the over-the-counter market in which the Shares are traded or the closing price quoted on any exchange or electronic securities market on which the Shares are listed,
whichever is applicable, as published in The Wall Street Journal for the thirty (30) trading days prior to the date of determination of fair market value (or such shorter period of time during which such Shares were traded over-the-counter or on such exchange). In the event that this Warrant is exercised pursuant to this Section 4 in connection with the Company’s first firm
commitment underwritten public offering (the “ Initial Public Offering ”), the fair market value per Share shall be the per share offering price to the public of the Initial Public Offering. If the Shares are not traded on the over-the-counter market, an exchange or an electronic securities market, the fair market value shall be the highest price per Share that the Company could obtain from a
willing buyer for Shares sold by the Company from authorized but unissued Shares, as determined in good faith by the Board, unless the Company is at such time subject to a Sale Event, in which case the fair market value of Warrant Stock shall be
deemed to be the Consideration received by the holders of such stock pursuant to such Sale Event.
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5. |
Representations and Warranties of the Company . In connection with the transactions provided for herein,
the Company hereby represents and warrants to the Holder that:
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(a) |
Stock Purchase Agreement . The Company expressly acknowledges and agrees that the representations and
warranties made by the Company in Section 2 of the Purchase Agreement, as qualified by the disclosures set forth in the Disclosure Schedule (as defined in the Purchase Agreement), are hereby incorporated and made a part of this Warrant,
mutatis mutandis , in respect of the Company’s issuance of the Warrant (and the underlying Shares) to the Holder; provided, that such representations and warranties are made as of the date hereof except as otherwise indicated in the
Purchase Agreement
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(b) |
Organization, Good Standing, and Qualification . The Company is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to carry on its business as now conducted. The Company is duly qualified to transact business and is in good standing in each
jurisdiction in which the failure to so qualify would have a material adverse effect on its business or properties.
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(c) |
Authorization . Except as may be limited by applicable bankruptcy, insolvency, reorganization or similar
laws relating to or affecting the enforcement of creditors’ rights, all corporate action has been taken on the part of the Company, its officers, directors, and stockholders necessary for the authorization, execution and delivery of this
Warrant. The Company has taken all corporate action required to make all the obligations of the Company reflected in the provisions of this Warrant the valid and enforceable obligations they purport to be. The issuance of this Warrant will not be
subject to preemptive rights of any stockholders of the Company. The Company has authorized sufficient shares of Exercise Stock to allow for the exercise of this Warrant.
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(d) |
Compliance with Other Instruments . The authorization, execution and delivery of the Warrant will not
constitute or result in a material default or violation of any law or regulation applicable to the Company or any material term or provision of the Certificate of Incorporation or bylaws, or any material agreement or instrument by which it is bound
or to which its properties or assets are subject.
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(e) |
Valid Issuance of Shares . The Shares, when issued, sold, and delivered in accordance with the terms of
this Warrant for the consideration expressed therein, will be duly and validly issued, fully paid and nonassessable and, based in part upon the representations and warranties of the Holders in this Warrant, will be issued in compliance with all
applicable federal and state securities laws.
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6. |
Representations and Warranties of the Holder . In connection with the transactions provided for herein,
the Holder hereby represents and warrants to the Company that:
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(a) |
Authorization . Holder represents that it has full power and authority to enter into this Warrant. This
Warrant constitutes the Holder’s valid and legally binding obligation, enforceable in accordance with its terms, except as may be limited by (i) applicable bankruptcy, insolvency, reorganization, or similar laws relating to or affecting
the enforcement of creditors’ rights and (ii) laws relating to the availability of specific performance, injunctive relief or other equitable remedies.
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(b) |
Purchase Entirely for Own Account . The Holder acknowledges that this Warrant is entered into by the
Holder in reliance upon such Holder’s representation to the Company that the Warrant and the Shares, and any shares of the Company’s capital stock issuable upon conversion of the Shares (collectively, the “ Securities ”)
will be acquired for investment for the Holder’s own account, not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and that the Holder has no present intention of selling, granting any participation
in or otherwise distributing the same. By acknowledging this Warrant, the Holder further represents that the Holder does not have any contract, undertaking, agreement, or arrangement with any person to sell, transfer or grant participations to such
person or to any third person, with respect to the Securities.
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(c) |
Disclosure of Information . The Holder acknowledges that it has received all the information it considers
necessary or appropriate for deciding whether to acquire the Securities. The Holder further represents that it has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the offering of the
Securities.
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(d) |
Investment Experience . The Holder is an investor in securities of companies in the development stage and
acknowledges that it is able to fend for itself, can bear the economic risk of its investment, and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment in the
Securities. If other than an individual, the Holder also represents it has not been organized solely for the purpose of acquiring the Securities.
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(e) |
Accredited Investor and Other Matters . The Holder is an “accredited investor” within the
meaning of Rule 501 of Regulation D, as presently in effect, as promulgated by the Securities and Exchange Commission (the “ SEC ”) under the Securities Act of 1933 (the “ Act ”). The Holder is not and none of its
officers, directors, managers, or beneficial equity owners is (i) listed on the Specially Designated Nationals and Blocked persons List (the “ SDN List ”) maintained by the Office of Foreign Assets Control
(“ OFAC ”), Department of the Treasury, and/or on any other similar list (collectively with the SDN List, the “ Lists ”) maintained by the OFAC pursuant to any authorizing statute, Executive Order or
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regulation; or (ii) a person (a “ Designated Person ”) either (A) included within the term “designated national” as defined in the Cuban Assets Control
Regulations, 31 C.F.R. Part 515, or (B) designated under Sections 1(a), 1(b), 1(c) or 1(d) of Executive Order No. 13224, 66 Fed. Reg. 49079 (published September 25, 2001) or similarly designated under any related enabling legislation
or any other similar Executive Orders. The Holder’s investment in the Company and no dividend or distribution to the Holder shall cause the Company to be in violation of any applicable U.S. federal or state or
non-U.S. laws or regulations, including anti-money laundering, sanctions, anti-bribery or anti-boycott laws or regulations, including the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, and the Foreign Corrupt Practices Act. The funds utilized to pay the Exercise Price will be paid through an account located in a jurisdiction that does not appear on the
list of boycotting countries published by the U.S. Department of Treasury pursuant to Code §999(a)(3), as in effect at the time of such contribution or payment. |
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(f) |
Withholding Taxes . Holder acknowledges that dividends with respect to the Shares may be subject to
applicable withholding requirements.
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(g) |
Restricted Securities . The Holder understands that the Securities are characterized as “restricted
securities” under the federal securities laws inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that under such laws and applicable regulations such securities may be resold without
registration under the Act, only in certain limited circumstances. In this connection, Holder represents that it is familiar with Rule 144, as presently in effect, as promulgated by the SEC under the Act (“ Rule 144 ”), and
understands the resale limitations imposed thereby and by the Act.
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(h) |
Further Limitations on Disposition . Without in any way limiting the representations set forth above, the
Holder further agrees not to make any disposition of all or any portion of the Shares unless and until the transferee has agreed in writing for the benefit of the Company to be bound by the terms of this Warrant, including, without limitation, this
Section 6 , Section 25 , and:
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there is then in effect a registration statement under the Act covering such proposed disposition and such
disposition is made in accordance with such registration statement; or
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ii. |
the Holder shall have notified the Company of the proposed disposition and shall have furnished the Company
with a detailed statement of the circumstances surrounding the proposed disposition, and if reasonably requested by the Company, the Holder shall have furnished the Company with an opinion of counsel, reasonably satisfactory to the Company, that
such disposition will not require registration of such shares under the Act. It is agreed that the Company will not require opinions of counsel for transactions made pursuant to Rule 144 except in extraordinary circumstances.
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(i) |
Legends . It is understood that the Securities may bear the following legends:
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“THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED,
HYPOTHECATED, OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER SUCH ACT OR
UNLESS SOLD PURSUANT TO RULE 144 UNDER SUCH ACT.
THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. SUCH SHARES MAY NOT BE SOLD, PLEDGED, OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR A VALID EXEMPTION FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SAID ACT.
THE SECURITIES REPRESENTED HEREBY MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT BETWEEN THE COMPANY AND THE STOCKHOLDER,
A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY.
THE SHARES REPRESENTED HEREBY ARE SUBJECT TO A VOTING AGREEMENT, AS MAY BE
AMENDED FROM TIME TO TIME (A COPY OF WHICH MAY BE OBTAINED UPON WRITTEN REQUEST FROM THE COMPANY), AND BY ACCEPTING ANY INTEREST IN SUCH SHARES THE PERSON ACCEPTING SUCH INTEREST SHALL BE DEEMED TO AGREE TO AND SHALL BECOME BOUND BY ALL THE
PROVISIONS OF THAT VOTING AGREEMENT, INCLUDING CERTAIN RESTRICTIONS ON TRANSFER AND OWNERSHIP SET FORTH THEREIN.”
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Covenants of the Company .
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(a) |
Notices of Record Date . In the event of any taking by the Company of a record of the holders of any
class of securities for the purpose of determining the holders thereof who are entitled to receive any dividend (other than a cash dividend which is the same as cash dividends paid in previous quarters and stock dividends) or other distribution, the
Company shall mail to the Holder, at least ten (10) days prior to such record date, a notice specifying the date on which any such record is to be taken for the purpose of such dividend or distribution.
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(b) |
Covenants as to Exercise Shares . The Company covenants and agrees that all Shares that may be issued
upon the exercise of the rights represented by this Warrant will, upon issuance in accordance with the terms hereof, be validly issued and outstanding, fully paid and nonassessable, and free from all taxes, liens and charges with respect to the
issuance thereof. The Company further covenants and agrees that the Company will at all times during the Exercise
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Period, have authorized and reserved, free from preemptive rights, a sufficient number of shares of Exercise Stock to provide for the exercise of the rights represented by this Warrant. If at any
time during the Exercise Period the number of authorized but unissued shares of Exercise Stock shall not be sufficient to permit exercise of this Warrant, the Company will take such corporate action as may, in the opinion of its counsel, be
necessary to increase its authorized but unissued shares of Exercise Stock to such number of shares as shall be sufficient for such purposes. |
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8. |
Adjustment of Exercise Price and Number of Shares . The number and kind of Shares purchasable upon
exercise of this Warrant and the Exercise Price shall be subject to adjustment from time to time as follows:
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(a) |
Subdivisions, Combinations and Other Issuances . If the Company shall at any time after the issuance but
prior to the expiration of this Warrant subdivide its Exercise Stock, by split-up or otherwise, or combine its Exercise Stock, or issue additional shares of its capital stock as a dividend with respect to any
shares of its Exercise Stock, the number of Shares issuable on the exercise of this Warrant shall forthwith be proportionately increased in the case of a subdivision or stock dividend, or proportionately decreased in the case of a combination.
Appropriate adjustments shall also be made to the Exercise Price payable per share, but the aggregate Exercise Price payable for the total number of Shares purchasable under this Warrant (as adjusted) shall remain the same. Any adjustment under this
Section 8(a) shall become effective at the close of business on the date the subdivision or combination becomes effective, or as of the record date of such dividend, or in the event that no record date is fixed, upon the making of such
dividend.
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(b) |
Reclassification, Reorganization and Consolidation . In case of any reclassification, capital
reorganization or change in the capital stock of the Company (other than as a result of a subdivision, combination or stock dividend provided for in Section 8(a) above), then, as a condition of such reclassification, reorganization or
change, lawful provision shall be made, and duly executed documents evidencing the same from the Company or its successor shall be delivered to the Holder, so that the Holder shall have the right at any time prior to the expiration of this Warrant
to purchase, at a total price equal to that payable upon the exercise of this Warrant, the kind and amount of shares of stock and other securities or property receivable in connection with such reclassification, reorganization or change by a holder
of the same number and type of securities as were purchasable as Shares by the Holder immediately prior to such reclassification, reorganization or change. In any such case appropriate provisions shall be made with respect to the rights and interest
of the Holder so that the provisions hereof shall thereafter be applicable with respect to any shares of stock or other securities or property deliverable upon exercise hereof, and appropriate adjustments shall be made to the Exercise Price per
Share payable hereunder, provided the aggregate Exercise Price shall remain the same.
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(c) |
Notice of Adjustment . When any adjustment is required to be made in the number or kind of shares
purchasable upon exercise of the Warrant, or in the Exercise Price, the Company shall promptly notify the Holder of such event and of the number of Shares or other securities or property thereafter purchasable upon exercise of this Warrant.
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(d) |
Conversion of Exercise Stock . In the event that all outstanding shares of Exercise Stock are converted
to another series or class of the Company’s capital stock, or any other security, in accordance with the terms of the Certificate of Incorporation in connection with the Company’s Initial Public Offering, Sale Event or other event, this
Warrant shall become exercisable for such other security.
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9. |
No Fractional Shares or Scrip . No fractional shares or scrip representing fractional shares shall be
issued upon the exercise of this Warrant, and in lieu of such fractional shares, the number of Shares issued upon the exercise of this Warrant shall be rounded down to the nearest whole share.
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10. |
No Stockholder Rights . Prior to exercise of this Warrant, the Holder shall not be entitled to any rights
of a stockholder with respect to the Shares, including (without limitation) the right to vote such Shares, receive dividends or other distributions thereon, exercise preemptive rights or be notified of stockholder meetings, and, except as otherwise
provided in this Warrant, such Holder shall not be entitled to any stockholder notice or other communication concerning the business or affairs of the Company.
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11. |
Replacement of the Warrant . Subject to the receipt of evidence reasonably satisfactory to the Company of
the loss, theft, destruction or mutilation of this Warrant and, in the case of loss, theft or destruction, on delivery of an indemnity agreement reasonably satisfactory in form and substance to the Company or, in the case of mutilation, on surrender
and cancellation of this Warrant, the Company at the expense of the Holder shall execute and deliver, in lieu of this Warrant, a new warrant of like tenor and amount.
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12. |
Transfer of Warrant . Subject to (a) any restrictions on transfer set forth herein, and
(b) compliance with applicable federal and state securities laws and any other contractual restrictions between the Company and the Holder contained herein, this Warrant, all rights hereunder, and the Shares which are issuable pursuant to an
exercise of this Warrant. are transferable in whole or in part by the Holder to any person or entity upon written notice to the Company. Within a reasonable time after the Company’s receipt of an executed Assignment Form in the form attached
hereto, the transfer shall be recorded on the books of the Company upon the surrender of this Warrant, properly endorsed, to the Company, and the payment to the Company of all transfer taxes and other governmental charges imposed on such transfer.
In the event of a partial transfer, the Company shall issue to the new holders one (1) or more appropriate new warrants.
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13. |
No Public Market . The Holder understands and acknowledges that no public market now exists for any of
the securities issued by the Company and that the Company has made no assurances that a public market will ever exist for the Company’s securities.
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14. |
Legal Counsel . The Holder has had the opportunity to review this Warrant, the exhibits and schedules
attached hereto and the transactions contemplated by this Warrant with its own legal counsel. The Holder is not relying on any statements or representations of the Company or its agents for legal advice with respect to this investment or the
transactions contemplated by this Warrant.
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15. |
Tax Advisors . The Holder has reviewed with its own tax advisors the U.S. federal, state and local and non-U.S. tax consequences of this investment and the transactions contemplated by this Warrant. With respect to such matters, the Holder relies solely on any such advisors and not on any statements or
representations of the Company or any of its agents, written or oral. The Holder understands that it (and not the Company) shall be responsible for its own tax liability that may arise as a result of this investment and the transactions contemplated
by this Warrant.
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16. |
Governing Law . This Warrant shall be governed by and construed under the laws of the State of Delaware
as applied to agreements among Delaware residents, made and to be performed entirely within the State of Delaware.
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17. |
Successors and Assigns . The terms and provisions of this Warrant shall inure to the benefit of, and be
binding upon, the Company and the holders hereof and their respective successors and assigns.
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18. |
Titles and Subtitles . The titles and subtitles used in this Warrant are used for convenience only and
are not to be considered in construing or interpreting this Warrant.
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19. |
Notices . All notices and other communications given or made pursuant hereto shall be in writing and
shall be deemed effectively given: (a) upon personal delivery to the party to be notified, (b) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient, and if not so confirmed, then on the
next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) day after deposit with a nationally recognized overnight courier, specifying next day
delivery, with written verification of receipt. All communications shall be sent to the respective parties at the following addresses (or at such other addresses as shall be specified by notice given in accordance with this Section 19):
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If to the Company:
210 Carnegie Center, Suite 103
Princeton, NJ 08540
Attention:
Chief Executive Officer
With a copy to:
Goodwin Procter LLP
100
Northern Avenue
Boston, MA 02210
Attention: Mitch Bloom and Rob Dzialo
If to Holder:
At the addresses
shown on the signature pages hereto.
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20. |
Confidentiality . Holder shall treat and hold as confidential any information concerning this Warrant and
the business or affairs of the Company in accordance with Section 3.6 of the Company’s Amended and Restated Investors’ Rights Agreement, dated September 4, 2025 (the “ IRA ”).
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21. |
Finder’s Fee . Each party represents that it neither is or will be obligated for any finder’s
fee or commission in connection with this transaction. The Holder agrees to indemnify and to hold harmless the Company from any liability for any commission or compensation in the nature of a finder’s fee (and the costs and expenses of
defending against such liability or asserted liability) for which the Holder or any of its officers, partners, employees or representatives is responsible. The Company agrees to indemnify and hold harmless the Holder from any liability for any
commission or compensation in the nature of a finder’s fee (and the costs and expenses of defending against such liability or asserted liability) for which the Company or any of its officers, employees or representatives is responsible.
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22. |
Expenses . If any action at law or in equity is necessary to enforce or interpret the terms of this
Warrant, the prevailing party shall be entitled to reasonable attorneys’ fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
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23. |
Entire Agreement; Amendments and Waivers . This Warrant, any other documents delivered pursuant hereto
and the Purchase Agreement constitute the full and entire understanding and agreement between the parties with regard to the subjects hereof and thereof. Nonetheless, any term of this Warrant may be amended and the observance of any term of this
Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), with the written consent of the Company and the Holder; or if this Warrant has been assigned in part, by the holders or rights to
purchase a majority of the shares originally issuable pursuant to this Warrant.
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24. |
Severability . If any provision of this Warrant is held to be unenforceable under applicable law, such
provision shall be excluded from this Warrant and the balance of the Warrant shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms.
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25. |
“Market Stand-Off” Agreement . The Holder hereby
agrees that this Warrant shall be subject to the terms and conditions of Section 2.11 of the IRA.
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IN WITNESS
WHEREOF, the parties have executed this Warrant as of the date first written above.
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KARDIGAN, INC. |
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By: |
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/s/ Tassos Gianakakos
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Name: Tassos Gianakakos |
Title: President and Chief Executive Officer |
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ACKNOWLEDGED AND AGREED: |
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HOLDER |
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ARCH VENTURE FUND XIII, L.P. |
By: ARCH Venture Partners XIII, L.P., its General Partner |
By: ARCH Venture Partners XIII, LLC, its General Partner |
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By: |
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/s/ Mark McDonnell
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Name: Mark McDonnell |
Title: Managing Director |
NOTICE OF EXERCISE
KARDIGAN, INC.
Attention: Corporate Secretary
The undersigned hereby elects to purchase, pursuant to the provisions of the Warrant, as follows:
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❑ |
_____________ shares of Exercise Stock pursuant to the terms of the attached Warrant, and tenders herewith
payment in cash of the Exercise Price of such Shares in full, together with all applicable transfer taxes, if any.
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❑ |
Net Exercise the attached Warrant with respect to __________ Shares.
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The undersigned hereby represents and warrants that Representations and Warranties in Section 6 hereof are true and
correct as of the date hereof.
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HOLDER: |
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Date:___________________ |
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By: |
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Address: |
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Name in which shares should be registered: |
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ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this form and supply required information. Do not use this form to purchase shares.)
F OR V ALUE R ECEIVED , the foregoing Warrant and all rights evidenced thereby
are hereby assigned to
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Name: |
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(Please Print) |
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Address: |
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(Please Print) |
Dated: _________________
Holder’s
Signature:
Holder’s
Address:
NOTE : The signature to this Assignment Form must correspond with the name as it appears on the face of the Warrant. Officers of corporations and those
acting in a fiduciary or other representative capacity should provide proper evidence of authority to assign the foregoing Warrant.
### EX-4.3 - EX-4.3
EX-4.3
7
d107928dex43.htm
EX-4.3
EX-4.3
Exhibit 4.3
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY
MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
REGISTRATION IS NOT REQUIRED UNDER SUCH ACT OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SUCH ACT.
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Date of Issuance: September 4, 2025 |
KARDIGAN, INC.
WARRANT TO PURCHASE SHARES OF COMMON STOCK
For value received in connection with the Holder (as defined below)’s purchase of Series B Preferred Stock of the Company (as defined
below) pursuant to that certain Series B Preferred Stock Purchase Agreement, dated September 4, 2025, the receipt and sufficiency of which is hereby acknowledged, this Warrant (the “ Warrant ”) is issued to SCHF
(M) PV, L.P. (together with such holder’s assigns in accordance with the terms of this Warrant, the “ Holder ”) by Kardigan, Inc. (the “ Company ”).
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1. |
Purchase of Shares .
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(a) |
Number of Shares . Subject to the terms and conditions set forth herein (including as set forth in
Section 2(a) below), the Holder is entitled to purchase from the Company up to 550,000 fully paid and nonassessable shares of Exercise Stock (as defined below) subject to adjustment pursuant to Section 8 hereof (the
“ Shares ”).
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(b) |
Exercise Price . The exercise price for the Shares shall be $21.36508 per share (the “ Exercise
Price ”). The Shares and the Exercise Price shall be subject to adjustment pursuant to Section 8 hereof.
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(c) |
Type of Shares . The Shares issuable upon exercise of this Warrant shall be shares of the
Company’s Common Stock (the “ Exercise Stock ”).
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2. |
Exercise Period .
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(a) |
This Warrant shall be exercisable, in whole or in part, only upon the first date the Company achieves a
Valuation (as defined below) of $5,000,000,000 (as reasonably determined by the Company’s Board of Directors (the “ Board ”)) and ending at 5:00 p.m. E.T. on the tenth anniversary of the Date of Issuance (the
“ Exercise Period ”) . Notwithstanding anything to the contrary contained herein, if any of the vesting
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milestones set forth in the CEO Grant with respect to a Valuation equal to or in excess of $5,000,000,000 are accelerated by the Board without the achievement of such vesting Valuation
milestone(s) in accordance with the terms of the CEO Grant, then the $5,000,000,000 Valuation shall also be deemed achieved for purposes of this Warrant. |
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(b) |
Definitions .
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i. |
“ CEO Grant ” means that certain Early Exercise
Non-Qualified Stock Option Agreement under the Plan issued to Tassos Gianakakos dated on or about September 4, 2025.
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ii. |
“ Certificate of Incorporation ” means the Company’s Amended and Restated Certificate of
Incorporation, as may be amended and/or restated from time to time.
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iii. |
“ Consideration ” means the value of cash and/or
non-cash property (including equity securities, notes and other similar non-cash property) received by holders of Securities in a Sale Event. For the purposes hereof, non-cash property shall be valued in good faith by the Board including the then-seated Preferred Directors (as defined in the Certificate of Incorporation). For the purpose of calculating the amount of Consideration
received by holders of Securities, such holders shall be deemed to have received Holdback Proceeds only when and if such Holdback Proceeds are actually paid to such holders.
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iv. |
“ Holdback Proceeds ” means any portion of the aggregate value of the Consideration that
(i) is payable following the closing of a Sale Event, (ii) is contingent upon the performance of the Company or its assets, and/or attainment of financial targets, milestones, or other performance metrics or milestones following the
consummation of a Sale Event, including royalty payments and/or (iii) is held in an escrow fund or otherwise held back for indemnification, purchase price adjustment or other claims.
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v. |
“ Fully Diluted Valuation ” means (i) the Last Round Price multiplied by
(ii) the number of Securities issued and outstanding (determined on an as-converted, as-exercised or as-exchanged to Common
Stock basis) treating all shares of Common Stock reserved and available for issuance under the Plan or other equity incentive plan or arrangement as issued and outstanding (only to the extent such shares of Common Stock reserved and available for
issuance were reserved for issuance prior to or at the time of the Company’s last bona fide equity financing for the principal purpose of raising capital).
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vi. |
“ Last Round Price ” means the cash price per share for which the Company last sold its
preferred stock (on an as-converted to Common Stock basis) in a bona fide equity financing for the principal purpose of raising capital.
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vii. |
“ Market Capitalization ” means (i) the number of Securities issued and outstanding
(determined on an as-converted, as-exercised or as-exchanged to Common Stock basis) multiplied by (ii) the VWAP of a
share of Common Stock over the preceding thirty (30) day consecutive calendar period.
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viii. |
“ Person ” shall mean any individual, corporation, partnership (limited or general), limited
liability company, limited liability partnership, association, trust, joint venture, unincorporated organization or any similar entity.
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ix. |
“ Plan ” shall mean the Company’s Amended and Restated 2023 Stock Option and Grant Plan,
as amended from time to time.
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x. |
“ Purchase Agreement ” shall mean the Company’s Series B Preferred Stock Purchase
Agreement dated September 4, 2025 by and among the Company and the investors listed on Exhibit A thereto.
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xi. |
“ Sale Event ” shall mean a Deemed Liquidation Event as such term is defined in the
Certificate of Incorporation.
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xii. |
“ Securities ” means the Company’s capital stock and stock options, warrants, and other
securities directly or indirectly convertible into, exercisable for or exchangeable for shares of Common Stock.
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xiii. |
“ Termination Event ” means (a) the consummation of a Sale Event or (b) any
voluntary or involuntary liquidation, dissolution or winding up of the Company.
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xiv. |
“ Valuation ” shall be measured as follows:
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1. |
in the case of a Sale Event, the aggregate Consideration received (whether at the closing or following the
closing of such Sale Event) by holders of Securities;
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2. |
at any time prior to the Company’s Initial Public Offering, the Fully Diluted Valuation; and
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3. |
at any time after the Company’s Initial Public Offering, the Market Capitalization.
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All determinations of the Valuation shall be reasonably determined by the Board. Any determination by the
Board regarding the Valuation shall be consistent with the determination of the Valuation (as defined in the CEO Grant) as set forth in the CEO Grant.
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xv. |
“ VWAP ” means the volume weighted average trading price of Common Stock as reported by
Bloomberg, L.P. (which VWAP, if calculated for a multi-day period, shall be based on all trades during the primary trading session from 9:30 a.m., New York City time, to the time of the closing print on the
primary exchange of the Company (or its successor entity, if any) but in no case later than 4:10 p.m. New York City time for such period, and not an average of daily averages) or, if not reported therein, in another authoritative source mutually
selected by the Holder and the Company.
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3. |
Method of Exercise .
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(a) |
While this Warrant remains outstanding and is exercisable in accordance with Section 2 above, the
Holder may exercise, in whole or in part, to the extent then exercisable, the purchase rights evidenced hereby. Such exercise shall be effected by:
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i. |
the surrender of the Warrant, together with a duly executed copy of the Notice of Exercise attached hereto, to
the Company at its principal office (or at such other place as the Company shall notify the Holder in writing); and
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ii. |
the payment to the Company of an amount equal to the aggregate Exercise Price for the number of Shares being
purchased.
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(b) |
Each exercise of this Warrant shall be deemed to have been effected immediately prior to the close of business
on the day on which this Warrant is surrendered to the Company as provided in Section 3(a) above. At such time, the person or persons in whose name or names any certificate for the Shares shall be issuable upon such exercise as provided
in Section 3(c) below shall be deemed to have become the holder or holders of record of the Shares represented by such certificate.
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(c) |
Upon the exercise of the rights represented by this Warrant, a book entry or other evidence for the Shares so
purchased, registered in the name of the Holder or persons affiliated with the Holder, if the Holder so designates (upon payment by such Holder of any applicable transfer taxes and subject to the assignment restrictions hereof), shall be issued and
delivered to the Holder within a reasonable time after the rights represented by this Warrant shall have been so exercised. If this Warrant is exercised for fewer than all of the Shares, the Company shall issue to the Holder a new Warrant on
identical terms reflecting the remainder of the Shares.
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(d) |
The Company shall provide written notice to the Holder at least ten (10) business days prior to the
consummation of a Termination Event. Notwithstanding the provisions of Section 2 , in the event that the Company fails to provide such notice or if the holder has not exercised this Warrant prior to the closing of a Termination Event,
this Warrant shall automatically be deemed to be exercised to the extent exercisable in full in the manner set forth in Section 4 , without any further action on behalf of the Holder immediately prior to such closing.
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(e) |
Notwithstanding the foregoing or anything to the contrary in this Warrant, if Holder, along with the Notice of
Exercise, notifies the Company that a filing under the Hart-Scott-Rodino Act of 1976, as amended (the “ HSR Act ”) may be required in connection with the proposed exercise of this Warrant, then the Company shall provide Holder with
such information as may be reasonably requested so that Holder may make a final determination of whether a filing is required. If Holder determines that an HSR Act filing is required, then the parties shall follow the procedures set forth herein and
no Shares shall be issued under this Warrant to Holder pursuant to the applicable Notice of Exercise until the applicable waiting period under the HSR Act has expired or been earlier terminated and this Warrant shall not terminate under any
circumstances until such issuance of such Shares has been completed.
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i. |
If Holder determines that an HSR Act filing is required pursuant to Section 3(e) , then each of the
Company and Holder shall, as promptly as practicable, file with the United States Federal Trade Commission (the “ FTC ”) and Department of Justice Antitrust Division (the “ DOJ ”) an appropriate and complete
Notification and Report Form (the “ HSR Act Filings ”). The HSR Act Filings shall request early termination of the applicable waiting period under the HSR Act. Each of the Company and Holder shall, and shall cause its affiliates to,
furnish to the other party such necessary information (to the extent consistent with any applicable law) and reasonable assistance as the other party may request to determine whether an HSR Act Filing is required and in connection with its
preparation of the HSR Act Filings. Each of the Company and Holder shall, and shall cause its affiliates to, keep the other party apprised of the status of any communications by such party or any of its affiliates with, and any inquiries or requests
for additional information from, the FTC, the DOJ or any other governmental entity with respect to the HSR Act Filings or the transactions reported therein. Each of the Company and Holder shall, and the Company shall cause its affiliates to, comply
as promptly as practicable with any such inquiry or request and provide any supplemental information requested in connection with the HSR Act Filings or pursuant to any other applicable law. No party hereto or any of their respective affiliates
shall participate in any meeting or engage in any substantive conversation with any governmental entity with respect to the HSR Act Filings or transactions reported therein without giving the other party prior notice of the
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meeting or conversation. Any such provisions of information, rights to participate or consultations between the parties may be made on a counsel-only or outside counsel-only basis to the extent
required under applicable law or as appropriate to protect sensitive business information or maintain attorney-client or other privilege. Notwithstanding anything in this Warrant to the contrary, if Holder has notified the Company that an HSR Act
filing is required, then no Shares shall be issued under this Warrant to Holder until the applicable waiting period under the HSR Act has expired or been earlier terminated and this Warrant shall not terminate until such issuance has been completed.
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4. |
Net Exercise . In lieu of exercising this Warrant with cash, the Holder may elect to receive shares equal
to the value of this Warrant (or the portion thereof being exercised) by surrender of this Warrant to the Company together with notice of such election (a “ Net Exercise ”). A Holder who Net Exercises shall have the rights described
in Sections 3(b) and 3(c) hereof, and the Company shall issue to such Holder a number of Shares computed using the following formula:
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Where
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X = |
The number of Shares to be issued to the Holder.
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Y = |
The number of Shares purchasable and exercisable under this Warrant or, if only a portion of the Warrant is
being exercised, the portion of the Warrant being exercised (at the date of such calculation).
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A = |
The fair market value of one (1) Share (at the date of such calculation).
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B = |
The Exercise Price (as adjusted to the date of such calculation).
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For purposes of this Section 4 , the fair market value of a Share shall mean the average of the closing prices of the Shares quoted
in the over-the-counter market in which the Shares are traded or the closing price quoted on any exchange or electronic securities market on which the Shares are listed,
whichever is applicable, as published in The Wall Street Journal for the thirty (30) trading days prior to the date of determination of fair market value (or such shorter period of time during which such Shares were traded over-the-counter or on such exchange). In the event that this Warrant is exercised pursuant to this Section 4 in connection with the Company’s first firm
commitment underwritten public offering (the “ Initial Public Offering ”), the fair market value per Share shall be the per share offering price to the public of the Initial Public Offering. If the Shares are not traded on the over-the-counter market, an exchange or an electronic securities market, the fair market value shall be the highest price per Share that the Company could obtain from a
willing buyer for Shares sold by the Company from authorized but unissued Shares, as determined in good faith by the Board, unless the Company is at such time subject to a Sale Event, in which case the fair market value of Warrant Stock shall be
deemed to be the Consideration received by the holders of such stock pursuant to such Sale Event.
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5. |
Representations and Warranties of the Company . In connection with the transactions provided for herein,
the Company hereby represents and warrants to the Holder that:
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(a) |
Stock Purchase Agreement . The Company expressly acknowledges and agrees that the representations and
warranties made by the Company in Section 2 of the Purchase Agreement, as qualified by the disclosures set forth in the Disclosure Schedule (as defined in the Purchase Agreement), are hereby incorporated and made a part of this Warrant,
mutatis mutandis , in respect of the Company’s issuance of the Warrant (and the underlying Shares) to the Holder; provided, that such representations and warranties are made as of the date hereof except as otherwise indicated in the
Purchase Agreement
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(b) |
Organization, Good Standing, and Qualification . The Company is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to carry on its business as now conducted. The Company is duly qualified to transact business and is in good standing in each
jurisdiction in which the failure to so qualify would have a material adverse effect on its business or properties.
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(c) |
Authorization . Except as may be limited by applicable bankruptcy, insolvency, reorganization or similar
laws relating to or affecting the enforcement of creditors’ rights, all corporate action has been taken on the part of the Company, its officers, directors, and stockholders necessary for the authorization, execution and delivery of this
Warrant. The Company has taken all corporate action required to make all the obligations of the Company reflected in the provisions of this Warrant the valid and enforceable obligations they purport to be. The issuance of this Warrant will not be
subject to preemptive rights of any stockholders of the Company. The Company has authorized sufficient shares of Exercise Stock to allow for the exercise of this Warrant.
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(d) |
Compliance with Other Instruments . The authorization, execution and delivery of the Warrant will not
constitute or result in a material default or violation of any law or regulation applicable to the Company or any material term or provision of the Certificate of Incorporation or bylaws, or any material agreement or instrument by which it is bound
or to which its properties or assets are subject.
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(e) |
Valid Issuance of Shares . The Shares, when issued, sold, and delivered in accordance with the terms of
this Warrant for the consideration expressed therein, will be duly and validly issued, fully paid and nonassessable and, based in part upon the representations and warranties of the Holders in this Warrant, will be issued in compliance with all
applicable federal and state securities laws.
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6. |
Representations and Warranties of the Holder . In connection with the transactions provided for herein,
the Holder hereby represents and warrants to the Company that:
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(a) |
Authorization . Holder represents that it has full power and authority to enter into this Warrant. This
Warrant constitutes the Holder’s valid and legally binding obligation, enforceable in accordance with its terms, except as may be limited by (i) applicable bankruptcy, insolvency, reorganization, or similar laws relating to or affecting
the enforcement of creditors’ rights and (ii) laws relating to the availability of specific performance, injunctive relief or other equitable remedies.
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(b) |
Purchase Entirely for Own Account . The Holder acknowledges that this Warrant is entered into by the
Holder in reliance upon such Holder’s representation to the Company that the Warrant and the Shares, and any shares of the Company’s capital stock issuable upon conversion of the Shares (collectively, the “ Securities ”)
will be acquired for investment for the Holder’s own account, not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and that the Holder has no present intention of selling, granting any participation
in or otherwise distributing the same. By acknowledging this Warrant, the Holder further represents that the Holder does not have any contract, undertaking, agreement, or arrangement with any person to sell, transfer or grant participations to such
person or to any third person, with respect to the Securities.
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(c) |
Disclosure of Information . The Holder acknowledges that it has received all the information it considers
necessary or appropriate for deciding whether to acquire the Securities. The Holder further represents that it has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the offering of the
Securities.
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(d) |
Investment Experience . The Holder is an investor in securities of companies in the development stage and
acknowledges that it is able to fend for itself, can bear the economic risk of its investment, and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment in the
Securities. If other than an individual, the Holder also represents it has not been organized solely for the purpose of acquiring the Securities.
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(e) |
Accredited Investor and Other Matters . The Holder is an “accredited investor” within the
meaning of Rule 501 of Regulation D, as presently in effect, as promulgated by the Securities and Exchange Commission (the “ SEC ”) under the Securities Act of 1933 (the “ Act ”). The Holder is not and none of its
officers, directors, managers, or beneficial equity owners is (i) listed on the Specially Designated Nationals and Blocked persons List (the “ SDN List ”) maintained by the Office of Foreign Assets Control
(“ OFAC ”), Department of the Treasury, and/or on any other similar list (collectively with the SDN List, the “ Lists ”) maintained by the OFAC pursuant to any authorizing statute, Executive Order or
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regulation; or (ii) a person (a “ Designated Person ”) either (A) included within the term “designated national” as defined in the Cuban Assets Control
Regulations, 31 C.F.R. Part 515, or (B) designated under Sections 1(a), 1(b), 1(c) or 1(d) of Executive Order No. 13224, 66 Fed. Reg. 49079 (published September 25, 2001) or similarly designated under any related enabling legislation
or any other similar Executive Orders. The Holder’s investment in the Company and no dividend or distribution to the Holder shall cause the Company to be in violation of any applicable U.S. federal or state or
non-U.S. laws or regulations, including anti-money laundering, sanctions, anti-bribery or anti-boycott laws or regulations, including the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, and the Foreign Corrupt Practices Act. The funds utilized to pay the Exercise Price will be paid through an account located in a jurisdiction that does not appear on the
list of boycotting countries published by the U.S. Department of Treasury pursuant to Code §999(a)(3), as in effect at the time of such contribution or payment. |
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(f) |
Withholding Taxes . Holder acknowledges that dividends with respect to the Shares may be subject to
applicable withholding requirements.
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(g) |
Restricted Securities . The Holder understands that the Securities are characterized as “restricted
securities” under the federal securities laws inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that under such laws and applicable regulations such securities may be resold without
registration under the Act, only in certain limited circumstances. In this connection, Holder represents that it is familiar with Rule 144, as presently in effect, as promulgated by the SEC under the Act (“ Rule 144 ”), and
understands the resale limitations imposed thereby and by the Act.
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(h) |
Further Limitations on Disposition . Without in any way limiting the representations set forth above, the
Holder further agrees not to make any disposition of all or any portion of the Shares unless and until the transferee has agreed in writing for the benefit of the Company to be bound by the terms of this Warrant, including, without limitation, this
Section 6 , Section 25 , and:
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i. |
there is then in effect a registration statement under the Act covering such proposed disposition and such
disposition is made in accordance with such registration statement; or
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ii. |
the Holder shall have notified the Company of the proposed disposition and shall have furnished the Company
with a detailed statement of the circumstances surrounding the proposed disposition, and if reasonably requested by the Company, the Holder shall have furnished the Company with an opinion of counsel, reasonably satisfactory to the Company, that
such disposition will not require registration of such shares under the Act. It is agreed that the Company will not require opinions of counsel for transactions made pursuant to Rule 144 except in extraordinary circumstances.
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(i) |
Legends . It is understood that the Securities may bear the following legends:
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“THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED,
HYPOTHECATED, OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER SUCH ACT OR
UNLESS SOLD PURSUANT TO RULE 144 UNDER SUCH ACT.
THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. SUCH SHARES MAY NOT BE SOLD, PLEDGED, OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR A VALID EXEMPTION FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SAID ACT.
THE SECURITIES REPRESENTED HEREBY MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT BETWEEN THE COMPANY AND THE STOCKHOLDER,
A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY.
THE SHARES REPRESENTED HEREBY ARE SUBJECT TO A VOTING AGREEMENT, AS MAY BE
AMENDED FROM TIME TO TIME (A COPY OF WHICH MAY BE OBTAINED UPON WRITTEN REQUEST FROM THE COMPANY), AND BY ACCEPTING ANY INTEREST IN SUCH SHARES THE PERSON ACCEPTING SUCH INTEREST SHALL BE DEEMED TO AGREE TO AND SHALL BECOME BOUND BY ALL THE
PROVISIONS OF THAT VOTING AGREEMENT, INCLUDING CERTAIN RESTRICTIONS ON TRANSFER AND OWNERSHIP SET FORTH THEREIN.”
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7. |
Covenants of the Company .
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(a) |
Notices of Record Date . In the event of any taking by the Company of a record of the holders of any
class of securities for the purpose of determining the holders thereof who are entitled to receive any dividend (other than a cash dividend which is the same as cash dividends paid in previous quarters and stock dividends) or other distribution, the
Company shall mail to the Holder, at least ten (10) days prior to such record date, a notice specifying the date on which any such record is to be taken for the purpose of such dividend or distribution.
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(b) |
Covenants as to Exercise Shares . The Company covenants and agrees that all Shares that may be issued
upon the exercise of the rights represented by this Warrant will, upon issuance in accordance with the terms hereof, be validly issued and outstanding, fully paid and nonassessable, and free from all taxes, liens and charges with respect to the
issuance thereof. The Company further covenants and agrees that the Company will at all times during the Exercise
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Period, have authorized and reserved, free from preemptive rights, a sufficient number of shares of Exercise Stock to provide for the exercise of the rights represented by this Warrant. If at any
time during the Exercise Period the number of authorized but unissued shares of Exercise Stock shall not be sufficient to permit exercise of this Warrant, the Company will take such corporate action as may, in the opinion of its counsel, be
necessary to increase its authorized but unissued shares of Exercise Stock to such number of shares as shall be sufficient for such purposes. |
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8. |
Adjustment of Exercise Price and Number of Shares . The number and kind of Shares purchasable upon
exercise of this Warrant and the Exercise Price shall be subject to adjustment from time to time as follows:
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(a) |
Subdivisions, Combinations and Other Issuances . If the Company shall at any time after the issuance but
prior to the expiration of this Warrant subdivide its Exercise Stock, by split-up or otherwise, or combine its Exercise Stock, or issue additional shares of its capital stock as a dividend with respect to any
shares of its Exercise Stock, the number of Shares issuable on the exercise of this Warrant shall forthwith be proportionately increased in the case of a subdivision or stock dividend, or proportionately decreased in the case of a combination.
Appropriate adjustments shall also be made to the Exercise Price payable per share, but the aggregate Exercise Price payable for the total number of Shares purchasable under this Warrant (as adjusted) shall remain the same. Any adjustment under this
Section 8(a) shall become effective at the close of business on the date the subdivision or combination becomes effective, or as of the record date of such dividend, or in the event that no record date is fixed, upon the making of such
dividend.
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(b) |
Reclassification, Reorganization and Consolidation . In case of any reclassification, capital
reorganization or change in the capital stock of the Company (other than as a result of a subdivision, combination or stock dividend provided for in Section 8(a) above), then, as a condition of such reclassification, reorganization or
change, lawful provision shall be made, and duly executed documents evidencing the same from the Company or its successor shall be delivered to the Holder, so that the Holder shall have the right at any time prior to the expiration of this Warrant
to purchase, at a total price equal to that payable upon the exercise of this Warrant, the kind and amount of shares of stock and other securities or property receivable in connection with such reclassification, reorganization or change by a holder
of the same number and type of securities as were purchasable as Shares by the Holder immediately prior to such reclassification, reorganization or change. In any such case appropriate provisions shall be made with respect to the rights and interest
of the Holder so that the provisions hereof shall thereafter be applicable with respect to any shares of stock or other securities or property deliverable upon exercise hereof, and appropriate adjustments shall be made to the Exercise Price per
Share payable hereunder, provided the aggregate Exercise Price shall remain the same.
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(c) |
Notice of Adjustment . When any adjustment is required to be made in the number or kind of shares
purchasable upon exercise of the Warrant, or in the Exercise Price, the Company shall promptly notify the Holder of such event and of the number of Shares or other securities or property thereafter purchasable upon exercise of this Warrant.
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(d) |
Conversion of Exercise Stock . In the event that all outstanding shares of Exercise Stock are converted
to another series or class of the Company’s capital stock, or any other security, in accordance with the terms of the Certificate of Incorporation in connection with the Company’s Initial Public Offering, Sale Event or other event, this
Warrant shall become exercisable for such other security.
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9. |
No Fractional Shares or Scrip . No fractional shares or scrip representing fractional shares shall be
issued upon the exercise of this Warrant, and in lieu of such fractional shares, the number of Shares issued upon the exercise of this Warrant shall be rounded down to the nearest whole share.
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10. |
No Stockholder Rights . Prior to exercise of this Warrant, the Holder shall not be entitled to any rights
of a stockholder with respect to the Shares, including (without limitation) the right to vote such Shares, receive dividends or other distributions thereon, exercise preemptive rights or be notified of stockholder meetings, and, except as otherwise
provided in this Warrant, such Holder shall not be entitled to any stockholder notice or other communication concerning the business or affairs of the Company.
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11. |
Replacement of the Warrant . Subject to the receipt of evidence reasonably satisfactory to the Company of
the loss, theft, destruction or mutilation of this Warrant and, in the case of loss, theft or destruction, on delivery of an indemnity agreement reasonably satisfactory in form and substance to the Company or, in the case of mutilation, on surrender
and cancellation of this Warrant, the Company at the expense of the Holder shall execute and deliver, in lieu of this Warrant, a new warrant of like tenor and amount.
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12. |
Transfer of Warrant . Subject to (a) any restrictions on transfer set forth herein, and
(b) compliance with applicable federal and state securities laws and any other contractual restrictions between the Company and the Holder contained herein, this Warrant, all rights hereunder, and the Shares which are issuable pursuant to an
exercise of this Warrant. are transferable in whole or in part by the Holder to any person or entity upon written notice to the Company. Within a reasonable time after the Company’s receipt of an executed Assignment Form in the form attached
hereto, the transfer shall be recorded on the books of the Company upon the surrender of this Warrant, properly endorsed, to the Company, and the payment to the Company of all transfer taxes and other governmental charges imposed on such transfer.
In the event of a partial transfer, the Company shall issue to the new holders one (1) or more appropriate new warrants.
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13. |
No Public Market . The Holder understands and acknowledges that no public market now exists for any of
the securities issued by the Company and that the Company has made no assurances that a public market will ever exist for the Company’s securities.
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14. |
Legal Counsel . The Holder has had the opportunity to review this Warrant, the exhibits and schedules
attached hereto and the transactions contemplated by this Warrant with its own legal counsel. The Holder is not relying on any statements or representations of the Company or its agents for legal advice with respect to this investment or the
transactions contemplated by this Warrant.
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15. |
Tax Advisors . The Holder has reviewed with its own tax advisors the U.S. federal, state and local and non-U.S. tax consequences of this investment and the transactions contemplated by this Warrant. With respect to such matters, the Holder relies solely on any such advisors and not on any statements or
representations of the Company or any of its agents, written or oral. The Holder understands that it (and not the Company) shall be responsible for its own tax liability that may arise as a result of this investment and the transactions contemplated
by this Warrant.
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16. |
Governing Law . This Warrant shall be governed by and construed under the laws of the State of Delaware
as applied to agreements among Delaware residents, made and to be performed entirely within the State of Delaware.
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17. |
Successors and Assigns . The terms and provisions of this Warrant shall inure to the benefit of, and be
binding upon, the Company and the holders hereof and their respective successors and assigns.
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18. |
Titles and Subtitles . The titles and subtitles used in this Warrant are used for convenience only and
are not to be considered in construing or interpreting this Warrant.
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19. |
Notices . All notices and other communications given or made pursuant hereto shall be in writing and
shall be deemed effectively given: (a) upon personal delivery to the party to be notified, (b) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient, and if not so confirmed, then on the
next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) day after deposit with a nationally recognized overnight courier, specifying next day
delivery, with written verification of receipt. All communications shall be sent to the respective parties at the following addresses (or at such other addresses as shall be specified by notice given in accordance with this Section 19 ):
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If to the Company:
210 Carnegie Center, Suite 103
Princeton, NJ 08540
Attention:
Chief Executive Officer
With a copy to:
Goodwin Procter LLP
100
Northern Avenue
Boston, MA 02210
Attention: Mitch Bloom and Rob Dzialo
If to Holder:
At the addresses
shown on the signature pages hereto.
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20. |
Confidentiality . Holder shall treat and hold as confidential any information concerning this Warrant and
the business or affairs of the Company in accordance with Section 3.6 of the Company’s Amended and Restated Investors’ Rights Agreement, dated September 4, 2025 (the “ IRA ”).
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21. |
Finder’s Fee . Each party represents that it neither is or will be obligated for any finder’s
fee or commission in connection with this transaction. The Holder agrees to indemnify and to hold harmless the Company from any liability for any commission or compensation in the nature of a finder’s fee (and the costs and expenses of
defending against such liability or asserted liability) for which the Holder or any of its officers, partners, employees or representatives is responsible. The Company agrees to indemnify and hold harmless the Holder from any liability for any
commission or compensation in the nature of a finder’s fee (and the costs and expenses of defending against such liability or asserted liability) for which the Company or any of its officers, employees or representatives is responsible.
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22. |
Expenses . If any action at law or in equity is necessary to enforce or interpret the terms of this
Warrant, the prevailing party shall be entitled to reasonable attorneys’ fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
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23. |
Entire Agreement; Amendments and Wai